LOCSIN V.

CA, 206 SCRA 383

acquired by the spouses in the course of their union, which

however was not blessed with children.

G.R. No. 89783 February 19, 1992

MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B.
LOCSIN, AUREA B. LOCSIN, MATILDE L. CORDERO,
SALVADOR B. LOCSIN and MANUEL V. DEL
ROSARIO,Petitioners, vs. THE HON. COURT OF
APPEALS, JOSE JAUCIAN, FLORENTINO JAUCIAN,
MERCEDES JAUCIAN ARBOLEDA, HEIRS OF JOSEFINA
J. BORJA, HEIRS OF EDUARDO JAUCIAN and HEIRS OF
VICENTE JAUCIAN, Respondents.
Aytona Law Office and Siquia Law Offices for petitioners...
Mabella, Sangil & Associates for private respondents.
NARVASA, C.J.:
Reversal of the decision of the Court of Appeals in CA-G.R.
No. CV-11186 - affirming with modification the judgment of
the Regional Trial Court of Albay in favor of the plaintiffs in
Civil Case No. 7152 entitled "Jose Jaucian, et al. v. Mariano
B. Locsin, et al.," an action for recovery of real property
with damages - is sought. in these proceedings initiated by
petition for review on certiorari in accordance with Rule 45
of the Rules of Court...
The petition was initially denied due course and dismissed
by this Court. It was however reinstated upon a second
motion for reconsideration filed by the petitioners, and the
respondents were required to comment thereon. The
petition was thereafter given due course and the parties
were directed to submit their memorandums. These,
together with the evidence, having been carefully
considered, the Court now decides the case...
First, the facts as the Court sees them in light of the
evidence on record:
The late Getulio Locsin had three children named Mariano,
Julian and Magdalena, all surnamed Locsin. He owned
extensive residential and agricultural properties in the
provinces of Albay and Sorsogon. After his death, his
estate was divided among his three (3) children as follows:
(a) the coconut lands of some 700 hectares in Bual, Pilar,
Sorsogon, were adjudicated to his daughter, Magdalena
Locsin;..
(b) 106 hectares of coconut lands were given to Julian
Locsin, father of the petitioners Julian, Mariano, Jose,
Salvador, Matilde, and Aurea, all surnamed Locsin;..
(c) more than forty (40) hectares of coconut lands in
Bogtong, eighteen (18) hectares of riceland in Daraga, and
the residential lots in Daraga, Albay and in Legazpi City
went to his son Mariano, which Mariano brought into his
marriage to Catalina Jaucian in 1908. Catalina, for her
part, brought into the marriage untitled properties which
she had inherited from her parents, Balbino Jaucian and
Simona Anson. These were augmented by other properties

Eventually, the properties of Mariano and Catalina were

brought under the Torrens System. Those that Mariano
inherited from his father, Getulio Locsin, were surveyed
cadastrally and registered in the name of "Mariano Locsin,
married to Catalina Jaucian.''
Mariano Locsin executed a Last Will and Testament
instituting his wife, Catalina, as the sole and universal heir
of all his properties. The will was drawn up by his wife's
nephew and trusted legal adviser, Attorney Salvador
Lorayes. Attorney Lorayes disclosed that the spouses
being childless, they had agreed that their properties,
after both of them shall have died should revert to their
respective sides of the family, i.e., Mariano's properties
would go to his "Locsin relatives" (i.e., brothers and sisters
or nephews and nieces), and those of Catalina to her
"Jaucian relatives."
Don Mariano Locsin died of cancer on September 14, 1948
after a lingering illness. In due time, his will was probated
in Special Proceedings No. 138, CFI of Albay without any
opposition from both sides of the family. As directed in his
will, Doa Catalina was appointed executrix of his estate.
Her lawyer in the probate proceeding was Attorney
Lorayes. In the inventory of her husband's estate which
she submitted to the probate court for approval, Catalina
declared that "all items mentioned from Nos. 1 to 33 are
the private properties of the deceased and form part of his
capital at the time of the marriage with the surviving
spouse, while items Nos. 34 to 42 are conjugal."
Among her own and Don Mariano's relatives, Doa
Catalina was closest to her nephew, Attorney Salvador
Lorayes, her nieces, Elena Jaucian, Maria Lorayes-Cornelio
and Maria Olbes-Velasco, and the husbands of the last
two: Hostilio Cornelio and Fernando Velasco. Her trust in
Hostilio Cornelio was such that she made him custodian of
all the titles of her properties; and before she disposed of
any of them, she unfailingly consulted her lawyer-nephew,
Attorney Salvador Lorayes. It was Atty. Lorayes who
prepared the legal documents and, more often than not,
the witnesses to the transactions were her niece Elena
Jaucian, Maria Lorayes-Cornelio, Maria Olbes-Velasco, or
their husbands. Her niece, Elena Jaucian, was her life-long
companion in her house.
Don Mariano relied on Doa Catalina to carry out the
terms of their compact, hence, nine (9) years after his
death, as if in obedience to his voice from the grave, and
fully cognizant that she was also advancing in years, Doa
Catalina began transferring, by sale, donation or
assignment, Don Mariano's as well as her own, properties
to their respective nephews and nieces. She made the
following sales and donation of properties which she had
received from her husband's estate, to his Locsin nephews
and nieces:

EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE

WITNESSES
23 Jan. 26, 1957 Deed of Absolute Sale in 962 P 481
favor of Mariano Locsin
1-JRL Apr. 7, 1966 Deed of Sale in favor of 430,203 P
20,000
Jose R. Locsin
1-JJL Mar. 22, 1967 Deed of Sale in favor of 5,000 P 1,000
Hostilio Cornello
Julian Locsin (Lot 2020) Helen M. Jaucian
1 Nov. 29, 1974 Deed of Donation in 26,509
favor Aurea Locsin,
Matilde L. Cordero
and Salvador Locsin
2 Feb. 4, 1975 Deed of Donation in 34,045
favor Aurea Locsin,
Matilde L. Cordero
and Salvador Locsin
3 Sept. 9, 1975 Deed of Donation in (Lot 2059)
favor Aurea Locsin,
Matilde L. Cordero
and Salvador Locsin
4 July 15, 1974 Deed of Absolute Sale in 1,424 Hostilio
Cornelio
favor of Aurea B. Locsin Fernando Velasco
5 July 15, 1974 Deed of Absolute Sale in 1,456 P 5,750
Hostilio Cornelio
favor of Aurea B. Locsin Elena Jaucian
6 July 15, 1974 Deed of Absolute Sale in 1,237 P 5,720 ditto favor of Aurea B. Locsin
7 July 15, 1974 Deed of Absolute Sale in 1,404 P 4,050 ditto favor of Aurea B. Locsin
15 Nov. 26, 1975 Deed of Sale in favor of 261 P 4,930 ditto Aurea Locsin
16 Oct. 17, 1975 Deed of Sale in favor of 533 P 2,000
Delfina Anson
Aurea Locsin M. Acabado
17 Nov. 26, 1975 Deed of Sale in favor of 373 P 1,000
Leonor Satuito
Aurea Locsin Mariano B. Locsin

19 Sept. 1, 1975 Conditional Donation in 1,130 P 3,000 ditto favor of Mariano Locsin
1-MVRJ Dec. 29, 1972 Deed of Reconveyance 1,5110.66 P
1,000 Delfina Anson
in favor of Manuel V. del (Lot 2155) Antonio Illegible
Rosario whose maternal
grandfather was Getulio
Locsin
2-MVRJ June 30, 1973 Deed of Reconveyance 319.34 P 500
Antonio Illegible
in favor of Manuel V. del (Lot 2155) Salvador Nical
Rosario but the rentals
from bigger portion of
Lot 2155 leased to Filoil
Refinery were assigned to
Maria Jaucian Lorayes
Cornelio..
Of her own properties, Doa Catalina conveyed the
following to her own nephews and nieces and others:
EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE
2-JJL July 16, 1964 Deed of Sale in favor 5,000 P 1,000
Vicente Jaucian (lot 2020)
(6,825 sqm. when
resurveyed)
24 Feb. 12, 1973 Deed of Absolute Sale 100 P 1,000
in favor of Francisco M.
Maquiniana
26 July 15, 1973 Deed of Absolute Sale in 130 P 1,300
favor of Francisco
Maquiniana
27 May 3, 1973 Deed of Absolute Sale in 100 P 1,000
favor of Ireneo Mamia
28 May 3, 1973 Deed of Absolute Sale in 75 P 750
favor of Zenaida Buiza
29 May 3, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Felisa Morjella
30 Apr. 3, 1973 Deed of Absolute Sale in 31 P 1,000
favor of Inocentes Motocinos
31 Feb. 12, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Casimiro Mondevil
32 Mar. 1, 1973 Deed of Absolute Sale in 112 P 1,200
favor of Juan Saballa
25 Dec. 28, 1973 Deed of Absolute Sale in 250 P 2,500
of Rogelio Marticio..

Doa Catalina died on July 6, 1977.

Four years before her death, she had made a will on
October 22, 1973 affirming and ratifying the transfers she
had made during her lifetime in favor of her husband's,
and her own, relatives. After the reading of her will, all the
relatives agreed that there was no need to submit it to the
court for probate because the properties devised to them
under the will had already been conveyed to them by the
deceased when she was still alive, except some legacies
which the executor of her will or estate, Attorney Salvador
Lorayes, proceeded to distribute.
In 1989, or six (6) years after Doa Catalina's demise,
some of her Jaucian nephews and nieces who had already
received their legacies and hereditary shares from her
estate, filed action in the Regional Trial Court of Legaspi
City (Branch VIII, Civil Case No. 7152) to recover the
properties which she had conveyed to the Locsins during
her lifetime, alleging that the conveyances were
inofficious, without consideration, and intended solely to
circumvent the laws on succession. Those who were
closest to Doa Catalina did not join the action...
After the trial, judgment was rendered on July 8, l985 in
favor of the plaintiffs (Jaucian), and against the Locsin
defendants, the dispositive part of which reads:
WHEREFORE, this Court renders judgment for the plaintiffs
and against the defendants:
(1) declaring the, plaintiffs, except the heirs of Josefina J.
Borja and Eduardo Jaucian, who withdrew, the rightful
heirs and entitled to the entire estate, in equal portions, of
Catalina Jaucian Vda. de Locsin, being the nearest
collateral heirs by right of representation of Juan and
Gregorio, both surnamed Jaucian, and full-blood brothers
of Catalina;..
(2) declaring the deeds of sale, donations, reconveyance
and exchange and all other instruments conveying any
part of the estate of Catalina J. Vda. de Locsin including,
but not limited to those in the inventory of known
properties (Annex B of the complaint) as null and void abinitio;..
(3) ordering the Register of Deeds of Albay and/or Legazpi
City to cancel all certificates of title and other transfers of
the real properties, subject of this case, in the name of
defendants, and derivatives therefrom, and issue new
ones to the plaintiffs;..
(4) ordering the defendants, jointly and severally, to
reconvey ownership and possession of all such properties
to the plaintiffs, together with all muniments of title
properly endorsed and delivered, and all the fruits and
incomes received by the defendants from the estate of
Catalina, with legal interest from the filing of this action;
and where reconveyance and delivery cannot be effected
for reasons that might have intervened and prevent the

same, defendants shall pay for the value of such

properties, fruits and incomes received by them, also with
legal interest from the filing, of this case..
(5) ordering each of the defendants to pay the plaintiffs
the amount of P30,000.00 as exemplary damages; and the
further sum of P20,000.00 each as moral damages; and..
(6) ordering the defendants to pay the plaintiffs attorney's
fees and litigation expenses, in the amount of P30,000.00
without prejudice to any contract between plaintiffs and
counsel...
Costs against the defendants. 9..
The Locsins appealed to the Court of Appeals (CA-G.R. No.
CV-11186) which rendered its now appealed judgment on
March 14, 1989, affirming the trial court's decision.
The petition has merit and should be granted.
The trial court and the Court of Appeals erred in declaring
the private respondents, nephews and nieces of Doa
Catalina J. Vda. de Locsin, entitled to inherit the properties
which she had already disposed of more than ten (10)
years before her death. For those properties did not form
part of her hereditary estate, i.e., "the property and
transmissible rights and obligations existing at the time of
(the decedent's) death and those which have accrued
thereto since the opening of the succession." The rights to
a person's succession are transmitted from the moment of
his death, and do not vest in his heirs until such
time. Property which Doa Catalina had transferred or
conveyed to other persons during her lifetime no longer
formed part of her estate at the time of her death to which
her heirs may lay claim. Had she died intestate, only the
property that remained in her estate at the time of her
death devolved to her legal heirs; and even if those
transfers were, one and all, treated as donations, the right
arising under certain circumstances to impugn and compel
the reduction or revocation of a decedent's gifts inter
vivos does not inure to the respondents since neither they
nor the donees are compulsory (or forced) heirs.
There is thus no basis for assuming an intention on the
part of Doa Catalina, in transferring the properties she
had received from her late husband to his nephews and
nieces, an intent to circumvent the law in violation of the
private respondents' rights to her succession. Said
respondents are not her compulsory heirs, and it is not
pretended that she had any such, hence there were no
legitimes that could conceivably be impaired by any
transfer of her property during her lifetime. All that the
respondents had was anexpectancy that in nowise
restricted her freedom to dispose of even her entire estate
subject only to the limitation set forth in Art. 750, Civil
Code which, even if it were breached, the respondents
may not invoke:

Art. 750. The donation may comprehend all the present

property of the donor or part thereof, provided he
reserves, in full ownership or in usufruct, sufficient means
for the support of himself, and of all relatives who, at the
time of the acceptance of the donation, are by law entitled
to be supported by the donor. Without such reservation,
the donation shall be reduced on petition of any person
affected. (634a)
The lower court capitalized on the fact that Doa Catalina
was already 90 years old when she died on July 6, 1977. It
insinuated that because of her advanced years she may
have been imposed upon, or unduly influenced and
morally pressured by her husband's nephews and nieces
(the petitioners) to transfer to them the properties which
she had inherited from Don Mariano's estate. The records
do not support that conjecture.
For as early as 1957, or twenty-eight (28) years before her
death, Doa Catalina had already begun transferring to
her Locsin nephews and nieces the properties which she
received from Don Mariano. She sold a 962-sq.m. lot on
January 26, 1957 to his nephew and namesake Mariano
Locsin II. On April 7, 1966, or 19 years before she passed
away, she also sold a 43 hectare land to another Locsin
nephew, Jose R. Locsin. The next year, or on March 22,
1967, she sold a 5,000-sq.m. portion of Lot 2020 to Julian
Locsin.
On March 27, 1967, Lot 2020 was partitioned by and
among Doa Catalina, Julian Locsin, Vicente Jaucian and
Agapito Lorete. At least Vicente Jaucian, among the other
respondents in this case, is estopped from assailing the
genuineness and due execution of the sale of portions of
Lot 2020 to himself, Julian Locsin, and Agapito Lorete, and
the partition agreement that he (Vicente) concluded with
the other co-owners of Lot 2020.
Among Doa, Catalina's last transactions before she died
in 1977 were the sales of property which she made in
favor of Aurea Locsin and Mariano Locsin in 1975.
There is not the slightest suggestion in the record that
Doa Catalina was mentally incompetent when she made
those dispositions. Indeed, how can any such suggestion
be made in light of the fact that even as she was
transferring properties to the Locsins, she was also
contemporaneously disposing of her other properties in
favor of the Jaucians? She sold to her nephew, Vicente
Jaucian, on July 16, 1964 (21 years before her death) onehalf (or 5,000 sq.m.) of Lot 2020. Three years later, or on
March 22, 1967, she sold another 5000 sq.m. of the same
lot to Julian Locsin.
From 1972 to 1973 she made several other transfers of
her properties to her relatives and other persons, namely:
Francisco Maquiniana, Ireneo Mamia, Zenaida Buiza, Feliza
Morjella, Inocentes Motocinos, Casimiro Mondevil, Juan
Saballa and Rogelio Marticio. None of those transactions
was impugned by the private respondents...

In 1975, or two years before her death, Doa Catalina sold

some lots not only to Don Mariano's niece, Aurea Locsin,
and his nephew, Mariano Locsin II, but also to her niece,
Mercedes Jaucian Arboleda. If she was competent to make
that conveyance to Mercedes, how can there be any doubt
that she was equally competent to transfer her other
pieces of property to Aurea and Mariano II?
The trial court's belief that Don Mariano Locsin
bequeathed his entire estate to his wife, from a
"consciousness of its real origin" which carries the
implication that said estate consisted of properties which
his wife had inherited from her parents, flies in the teeth
of Doa Catalina's admission in her inventory of that
estate, that "items 1 to 33 are the private properties of the
deceased (Don Mariano) and forms (sic) part of
his capital at the time of the marriage with the surviving
spouse, while items 34 to 42 are conjugal properties,
acquired during the marriage." She would have known
better than anyone else whether the listing included any
of her paraphernal property so it is safe to assume that
none was in fact included. The inventory was signed by
her under oath, and was approved by the probate court in
Special Proceeding No. 138 of the Court of First Instance of
Albay. It was prepared with the assistance of her own
nephew and counsel, Atty. Salvador Lorayes, who surely
would not have prepared a false inventory that would
have been prejudicial to his aunt's interest and to his own,
since he stood to inherit from her eventually.
This Court finds no reason to disbelieve Attorney Lorayes'
testimony that before Don Mariano died, he and his wife
(Doa Catalina), being childless, had agreed that their
respective properties should eventually revert to their
respective lineal relatives. As the trusted legal adviser of
the spouses and a full-blood nephew of Doa Catalina, he
would not have spun a tale out of thin air that would also
prejudice his own interest...
Little significance, it seems, has been attached to the fact
that among Doa Catalina's nephews and nieces, those
closest to her: (a) her lawyer-nephew Attorney Salvador
Lorayes; (b) her niece and companion Elena Jaucian: (c)
her nieces Maria Olbes-Velasco and Maria Lorayes-Cornelio
and their respective husbands, Fernando Velasco and
Hostilio Cornelio, did not join the suit to annul and
undo the dispositions of property which she made in favor
of the Locsins, although it would have been to their
advantage to do so. Their desistance persuasively
demonstrates that Doa Catalina acted as a completely
free agent when she made the conveyances in favor of the
petitioners. In fact, considering their closeness to Doa
Catalina it would have been well-nigh impossible for the
petitioners to employ "fraud, undue pressure, and subtle
manipulations" on her to make her sell or donate her
properties to them. Doa Catalina's niece, Elena Jaucian,
daughter of her brother, Eduardo Jaucian, lived with her in
her house. Her nephew-in-law, Hostilio Cornelio, was the
custodian of the titles of her properties. The sales and
donations which she signed in favor of the petitioners
were prepared by her trusted legal adviser and nephew,

Attorney Salvador Lorayes. The (1) deed of donation dated

November 19, 1974 in favor of Aurea Locsin, (2) another
deed of donation dated February 4, 1975 in favor of
Matilde Cordero, and (3) still another deed dated
September 9, 1975 in favor of Salvador Lorayes, were all
witnessed by Hostilio Cornelio (who is married to Doa
Catalina's niece, Maria Lorayes) and Fernando Velasco who
is married to another niece, Maria Olbes. The sales which
she made in favor of Aurea Locsin on July 15, 1974 were
witnessed by Hostilio Cornelio and Elena Jaucian. Given
those circumstances, said transactions could not have
been anything but free and voluntary acts on her part.
Apart from the foregoing considerations, the trial court
and the Court of Appeals erred in not dismissing this
action for annulment and reconveyance on the ground of
prescription. Commenced decades after the transactions
had been consummated, and six (6) years after Doa
Catalina's death, it prescribed four (4) years after the
subject transactions were recorded in the Registry of
Property, whether considered an action based on fraud, or
one to redress an injury to the rights of the plaintiffs. The
private respondents may not feign ignorance of said
transactions because the registration of the deeds was
constructive notice thereof to them and the whole world.
WHEREFORE, the petition for review is granted. The
decision dated March 14, 1989 of the Court of Appeals in
CA-G.R. CV No. 11186 is REVERSED and SET ASIDE. The
private respondents' complaint for annulment of contracts
and reconveyance of properties in Civil Case No. 7152 of
the Regional Trial Court, Branch VIII of Legazpi City, is
DISMISSED, with costs against the private respondents,
plaintiffs therein...
SO ORDERED.
Cruz, Grio-Aquino and Medialdea, JJ., concur.

CANEDA V. CA, 222 SCRA 781

G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA
CANEDA, JUAN CABALLERO, AUREA CABALLERO,
OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA,
MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, Petitioners, vs. HON. COURT OF APPEALS
and WILLIAM CABRERA, as Special Administrator of
the Estate of Mateo Caballero, Respondents.

Palma, Palma & Associates for petitioners...

Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present
petition for review on certiorari is the issue of whether or
not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of
the Civil Code...
The records show that on December 5, 1978, Mateo
Caballero, a widower without any children and already in
the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa. The said testator was
duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public, Atty. Filoteo Manigos, in the preparation of
that last will. It was declared therein, among other things,
that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion
Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of
whom do not appear to be related to the testator.
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding No.
3899-R before Branch II of the then Court of First Instance
of Cebu seeking the probate of his last will and testament.
The probate court set the petition for hearing on August
20, 1979 but the same and subsequent scheduled
hearings were postponed for one reason to another. On
May 29, 1980, the testator passed away before his petition
could finally be heard by the probate court. On February
25, 1981, Benoni Cabrera, on of the legatees named in the
will, sough his appointment as special administrator of the
testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court
in its order of March 6, 1981.
Thereafter, herein petitioners, claiming to be nephews and
nieces of the testator, instituted a second petition, entitled
"In the Matter of the Intestate Estate of Mateo Caballero"
and docketed as Special Proceeding No. 3965-R, before
Branch IX of the aforesaid Court of First Instance of Cebu.
On October 18, 1982, herein petitioners had their said
petition intestate proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the
Testator's will and the appointment of a special
administrator for his estate.
Benoni Cabrera died on February 8, 1982 hence the
probate court, now known as Branch XV of the Regional
Trial Court of Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on July 20,
1983, it issued an order for the return of the records of
Special Proceeding No. 3965-R to the archives since the
testate proceeding for the probate of the will had to be
heard and resolved first. On March 26, 1984 the case was

reraffled and eventually assigned to Branch XII of the

Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.
In the course of the hearing in Special Proceeding No.
3899-R, herein petitioners appeared as oppositors and
objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the
testator was already in the poor state of health such that
he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the
signature of the testator therein.
On the other hand, one of the attesting witnesses,
Cipriano Labuca, and the notary public Atty. Filoteo
Manigos, testified that the testator executed the will in
question in their presence while he was of sound and
disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was
not unduly influenced in any way in the execution of his
will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the testator
and of each other. The other two attesting witnesses were
not presented in the probate hearing as they had died by
then.
On April 5, 1988, the probate court rendered a decision
declaring the will in question as the last will and testament
of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of
Atty. Filoteo Manigos and Cipriano Labuca who clearly told
the Court that indeed Mateo Caballero executed the Last
Will and Testament now marked Exhibit "C" on December
5, 1978. Moreover, the fact that it was Mateo Caballero
who initiated the probate of his Will during his lifetime
when he caused the filing of the original petition now
marked Exhibit "D" clearly underscores the fact that this
was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of
Mateo Caballero in Exhibit "C" examined by a handwriting
expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it
because they abandoned the idea and instead presented
Aurea Caballero and Helen Caballero Campo as witnesses
for the oppositors...

pages thereof in the presence of the testator and of one

another...
On October 15, 1991, respondent court promulgated its
decision affirming that of the trial court, and ruling that
the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code,
thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy
complied with the requirements of Art. 805 of the Civil
Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the
testament was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in
letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on
the left hand margin in the presence of the said testator
and in the presence of each and all of us (emphasis
supplied)...
To our thinking, this is sufficient compliance and no
evidence need be presented to indicate the meaning that
the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one
another. Or as the language of the law would have it that
the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of
the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805
but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law."
Petitioners moved for the reconsideration of the said ruling
of respondent court, but the same was denied in the
latter's resolution of January 14, 1992, hence this appeal
now before us. Petitioners assert that respondent court
has ruled upon said issue in a manner not in accord with
the law and settled jurisprudence on the matter and are
now questioning once more, on the same ground as that
raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.

All told, it is the finding of this Court that Exhibit "C" is the
Last Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law.

We find the present petition to be meritorious, as we shall

shortly hereafter, after some prefatory observations which
we feel should be made in aid of the rationale for our
resolution of the controversy...

Undaunted by the said judgment of the probate court,

petitioners elevated the case in the Court of Appeals in
CA-G.R. CV No. 19669. They asserted therein that the will
in question is null and void for the reason that its
attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the
will witnessed the testator signing the will in their
presence and that they also signed the will and all the

1. A will has been defined as a species of conveyance

whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate after his death. Under the Civil
Code, there are two kinds of wills which a testator may
execute. The first kind is the ordinary or attested will, the
execution of which is governed by Articles 804 to 809 of
the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another...
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation should state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before
a notary public by a testator and the attesting witness.
Hence it is likewise known as notarial will. Where the
attestator is deaf or deaf-mute, Article 807 requires that
he must personally read the will, if able to do so.
Otherwise, he should designate two persons who would
read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is
blind, the will should be read to him twice; once, by
anyone of the witnesses thereto, and then again, by the
notary public before whom it is acknowledged.
The other kind of will is the holographic will, which Article
810 defines as one that is entirely written, dated, and
signed by the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of will is that they
should be in writing and must have been executed in a
language or dialect known to the testator.
However, in the case of an ordinary or attested will, its
attestation clause need not be written in a language or
dialect known to the testator since it does not form part of
the testamentary disposition. Furthermore, the language
used in the attestation clause likewise need not even be
known to the attesting witnesses.The last paragraph of
Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the
instrument has been executed before them and to the
manner of the execution the same. It is a separate
memorandum or record of the facts surrounding the

conduct of execution and once signed by the witnesses; it

gives affirmation to the fact that compliance with the
essential formalities required by law has been observed. It
is made for the purpose of preserving in a permanent form
a record of the facts that attended the execution of a
particular will, so that in case of failure of the memory of
the attesting witnesses, or other casualty, such facts may
still be proved.
Under the third paragraph of Article 805, such a clause,
the complete lack of which would result in the invalidity of
the will, should state (1) the number of the pages
used upon which the will is written; (2) that the testator
signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed
the signing by the testator of the will and all its
pages, andthat said witnesses also signed the will and
every page thereof in the presence of the testator and of
one another...
The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to
safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or
decrease in the pages; whereas the subscription of the
signature of the testator and the attesting witnesses is
made for the purpose of authentication and identification,
and thus indicates that the will is the very same
instrument executed by the testator and attested to by
the witnesses.
Further, by attesting and subscribing to the will, the
witnesses thereby declare the due execution of the will as
embodied in the attestation clause. The attestation clause,
therefore, provide strong legal guaranties for the due
execution of a will and to insure the authenticity
thereof. As it appertains only to the witnesses and not to
the testator, it need be signed only by them. Where it is
left unsigned, it would result in the invalidation of the will
as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its
witnesses.
In its report, the Code Commission commented on the
reasons of the law for requiring the formalities to be
followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating
the provisions on the law on wills in this Project consists in
the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards
and restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and influence
upon the testator.
This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills.

2. An examination of the last will and testament of Mateo

Caballero shows that it is comprised of three sheets all of
which have been numbered correlatively, with the left
margin of each page thereof bearing the respective
signatures of the testator and the three attesting
witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect
and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at
the end thereof by the three attesting witnesses
hereto. Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the Opposite
of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the
letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof,
on the spaces provided for his signature and on the left
hand margin, in the presence of the said testator and in
the presence of each and all of us.
It will be noted that Article 805 requires that the witness
should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the act
of senses, while subscription is the act of the hand. The
former is mental, the latter mechanical, and to attest a will
is to know that it was published as such, and to certify the
facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is
only to write on the same paper the names of the
witnesses, for the sole purpose of identification.
In Taboada vs. Rizal, we clarified that attestation consists
in witnessing the testator's execution of the will in order to
see and take note mentally that those things are done
which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of
identification of such paper as the will which was executed
by the testator. As it involves a mental act, there would be
no means, therefore, of ascertaining by a physical
examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other
unless this is substantially expressed in the attestation...
It is contended by petitioners that the aforequoted
attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the
Civil Code for attestation clauses, fails to specifically state
the fact that the attesting witnesses the testator sign the
will and all its pages in their presence and that they, the
witnesses, likewise signed the will and every page thereof

in the presence of the testator and of each other. We

agree...
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the
same does not expressly state therein the circumstance
that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each
other...
The phrase "and he has signed the same and every page
thereof, on the spaces provided for his signature and on
the left hand margin," obviously refers to the testator and
not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament."
On the other hand, although the words "in the presence of
the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of the
witnesses since said phrase immediately follows the words
"he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical
analysis , is the statement that the witnesses signed the
will and every page thereof in the presence of the testator
and of one another...
It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or
the language used therein which would warrant the
application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the
Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or inthe
language used therein shall not render the will invalid if it
is not proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly
cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the presence
of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does
not prove that the attesting witnesses did subscribe to the
will in the presence of the testator and of each other. The

execution of a will is supposed to be one act so that where

the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.

inferred that the acts not stated in the omitted textual

requirements were actually complied within the execution
of the will. In other words, defects must be remedied by
intrinsic evidence supplied by the will itself...

We believe that the further comment of former Justice

J.B.L. Reyes regarding Article 809, wherein he urged
caution in the application of the substantial compliance
rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with similar
questions:

In the case at bar, contrarily, proof of the acts required to

have been performed by the attesting witnesses can be
supplied by only extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no
basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting
to extrinsic evidence to prove the same and would
accordingly be doing by the indirection what in law he
cannot do directly...

. . . The rule must be limited to disregarding those defects

that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered;
whether the signatures appear in each and every page;
whether the subscribing witnesses are three or the will
was notarized. All theses are facts that the will itself can
reveal, and defects or even omissions concerning them in
the attestation clause can be safely disregarded. But the
total number of pages,and whether all persons required to
sign did so in the presence of each other must
substantially appear in the attestation clause, being the
only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects
and imperfections must only be with respect to the form of
the attestation or the language employed therein. Such
defects or imperfections would not render a will invalid
should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and
attestation has been held to be limited to merely an
examination of the will itself without resorting to
evidence aliunde, whether oral or written...
The foregoing considerations do not apply where the
attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other. In such a
situation, the defect is not only in the form or language of
the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect
complained of in the present case since there is no
plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof,
that the attesting witness did actually bear witness to the
signing by the testator of the will and all of its pages and
that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of
one another...
Furthermore, the rule on substantial compliance in Article
809 cannot be revoked or relied on by respondents since it
presupposes that the defects in the attestation clause can
be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or
from which it may necessarily be gleaned or clearly

4. Prior to the advent of the Civil Code on August 30,

1950, there was a divergence of views as to which manner
of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required
in the execution of wills. The formal requirements were at
that time embodied primarily in Section 618 of Act No.
190, the Code of Civil Procedure. Said section was later
amended by Act No. 2645, but the provisions respecting
said formalities found in Act. No. 190 and the amendment
thereto were practically reproduced and adopted in the
Civil Code...
One view advances the liberal or substantial compliance
rule. This was first laid down in the case of Abangan vs.
Abangan, where it was held that the object of the
solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that one must
not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a
will, hence when an interpretation already given assures
such ends, any other interpretation whatsoever that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last
will, must be disregarded. The subsequent cases of Avera
vs. Garcia, 37 Aldaba vs. Roque, Unson vs. Abella, Pecson
vs. Coronel, Fernandez vs. Vergel de Dios, et
al., and Nayve vs. Mojal, et al. all adhered to this position...
The other view which advocated the rule that statutes
which prescribe the formalities that should be observed in
the execution of wills are mandatory in nature and are to
be strictly construed was followed in the subsequent cases
of In the Matter of the Estate of Saguinsin, In re Will of
Andrada, Uy Coque vs. Sioca, In re Estate of
Neumark,and Sano vs. Quintana.
Gumban vs. Gorecho, et al., provided the Court with the
occasion to clarify the seemingly conflicting decisions in
the aforementioned cases. In said case of Gumban, the

attestation clause had failed to state that the witnesses

signed the will and each and every page thereof on the
left margin in the presence of the testator. The will in
question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of
this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will
of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs.
Quintana ([1925], 48 Phil., 506). Appellee counters with
the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922),
and culminating in Nayve vs. Mojal and Aguilar ([1924], 47
Phil., 152). In its last analysis, our task is to contrast and,
if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs.
Quintana, supra, and Nayve vs. Mojal and Aguilar, supra...
In the case of Sano vs. Quintana, supra, it was decided
that an attestation clause which does not recite that the
witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator is
defective and such a defect annuls the will. The case of Uy
Coque vs. Sioca, supra, was cited, but the case of Nayve
vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation
clause must estate the fact that the testator and the
witnesses reciprocally saw the signing of the will, for such
an act cannot be proved by the mere exhibition of the will,
if it is not stated therein. It was also held that the fact that
the testator and the witnesses signed each and every
page of the will can be proved also by the mere
examination of the signatures appearing on the document
itself, and the omission to state such evident facts does
not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine. Yet
here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other, we
reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place,
the Mojal, decision was concurred in by only four members
of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred
in by seven members of the court, a clear majority, with
one formal dissent. In the second place, the Mojal decision
was promulgated in December, 1924, while the Quintana
decision was promulgated in December, 1925; the
Quintana decision was thus subsequent in point of time.
And in the third place, the Quintana decision is believed

more nearly to conform to the applicable provisions of the

law.
The right to dispose of property by will is governed entirely
by statute. The law of the case is here found in section 61
of the Code of Civil Procedure as amended by Act No.
2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as
amended that "No will . . . shall be valid . . .unless . . .." It
is further provided in the same section that "The
attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all pages thereof
in the presence of the testator and of each other." Codal
section 634 provides that "The will shall be disallowed in
either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce
legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically
and clearly expressed...
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there
were decisions of the Court that once more appeared to
revive the seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs.
Morata, Rodriguez vs. Alcala, Enchevarria vs.
Sarmiento, and Testate Estate of Toray went the way of
the ruling as restated inGumban. But De Gala vs.
Gonzales, et al., Rey vs. Cartagena, De Ticson vs. De
Gorostiza, Sebastian vs. Panganiban, Rodriguez vs.
Yap, Grey vs. Fabia, Leynez vs. Leynez, Martir vs.
Martir, Alcala vs. De Villa, Sabado vs.
Fernandez, Mendoza vs. Pilapil, and Lopez vs.
Liboro, veered away from the strict interpretation rule and
established a trend toward an application of the liberal
view...
The Code Commission, cognizant of such a conflicting
welter of views and of the undeniable inclination towards a
liberal construction, recommended the codification of the
substantial compliance rule, as it believed this rule to be
in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus
became what is now Article 809 of the Civil Code, with this
explanation of the Code Commission:
The present law provides for only one form of executing a
will, and that is, in accordance with the formalities
prescribed by Section 618 of the Code of Civil Procedure
as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance

10

with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure, as
amended regarding the contents of the attestation clause
were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily restrained the freedom of the
testator in disposing of his property...

3899-R (Petition for the Probate of the Last Will and

Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate
Estate of Mateo Caballero) as an active case and
thereafter duly proceed with the settlement of the estate
of the said decedent...
SO ORDERED.

However, in recent years the Supreme Court changed its

attitude and has become more liberal in the interpretation
of the formalities in the execution of wills. This liberal view
is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
1941...
In the above mentioned decisions of our Supreme Court, it
has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the
main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project
is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in
substantial compliance with all the requirements of article
829."
The so-called liberal rule, the Court said in Gil vs.
Murciano, "does not offer any puzzle or difficulty, nor does
it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the
dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document
or supply missing details that should appear in the will
itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine
the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is
that omissions which can be supplied by an examination
of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the
will itself.
WHEREFORE, the petition is hereby GRANTED and the
impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special Proceeding No.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

GARCIA V. LACUESTA, 90 PHIL 489

G.R. No. L-4067. November 29, 1951.
In the Matter of the Will of ANTERO MERCADO,
deceased. ROSARIO GARCIA, Petitioner, v. JULIANA
LACUESTA, ET AL., Respondents.
Elviro L. Peralta and Hermenegildo A. Prieto,
for Petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason,
for Respondents.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF
TESTATORS NAME AT LATTERS DIRECTION. When the
testator expressly caused another to sign the formers
name, this fact must be recited in the attestation clause.
Otherwise, the will is fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the
cross appearing on a will is not the usual signature of the
testator or even one of the ways by which he signed his
name, that cross cannot be considered a valid signature.

DECISION
PARAS, C.J. :

This is an appeal from a decision of the Court of Appeals

disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains
the following attestation clause:
"We, the undersigned, by these presents do declare that
the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose
of three pages and all of them were signed in the presence
of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of
us witnesses.
"In testimony, whereof, we sign this testament, this the
third day of January, one thousand nine hundred forty
three, (1943) A.D.

11

(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO

CORTES
(Sgd.) BIBIANA ILLEGIBLE"
The will appears to have been signed by Atty. Florentino
Javier who wrote the name of Antero Mercado, followed
below by "A ruego del testador" and the name of
Florentino Javier. Antero Mercado is alleged to have
written a cross immediately after his name. The Court of
Appeals, reversing the judgment of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause
failed (1) to certify that the will was signed on all the left
margins of the three pages and at the end of the will by
Atty. Florentino Javier at the express request of the
testator in the presence of the testator and each and
every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the
formers request said testator has written a cross at the
end of his name and on the left margin of the three pages
of which the will consists and at the end thereof; (3) to
certify that the three witnesses signed the will in all the
pages thereon in the presence of the testator and of each
other.
In our opinion, the attestation clause is fatally defective
for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testators name under his
express direction, as required by section 618 of the Code
of Civil Procedure. The herein petitioner (who is appealing
by way ofcertiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his
name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioners theory is that
the cross is as much a signature as a thumbmark, the
latter having been held sufficient by this Court in the
cases of De Gala v. Gonzales and Ona, 53 Phil., 104; Dolar
v. Diancin, 55 Phil., 479; Payad v. Tolentino, 62 Phil., 848;
Neyra v. Neyra, 76 Phil., 296 and Lopez v. Liboro, 81 Phil.,
429.
It is not here pretended that the cross appearing on the
will is the usual signature of Antero Mercado or even one
of the ways by which he signed his name. After mature
reflection, we are not prepared to liken the mere sign of a
cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to
determine whether there is a sufficient recital in the
attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter
in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with
costs against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista
Angelo, JJ., concur.

TABOADA V. ROSAL, 118 SCRA 195

G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE
OF THE WILL OF DOROTEA PEREZ, (deceased):
APOLONIO TABOADA, Petitioner, vs. HON. AVELINO S.

ROSAL, as Judge of Court of First Instance of

Southern Leyte, (Branch III, Maasin),Respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:..
This is a petition for review of the orders issued by the
Court of First Instance of Southern Leyte, Branch III, in
Special Proceedings No. R-1713, entitled "In the Matter of
the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied the
probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court,
the petitioner attached the alleged last will and testament
of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page
contains the entire testamentary dispositions and is
signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three (3)
attesting witnesses and at the left hand margin by the
testatrix.
Since no opposition was filed after the petitioner's
compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive
the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified
on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C.
Pamatian issued the questioned order denying the probate
of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with
their corresponding addresses so that they could be
properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the
petitioner filed a manifestation and/or motion, ex
parte praying for a thirty-day period within which to
deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the
order denying the probate of the will. However, the motion
together with the previous manifestation and/or motion
could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal

12

assumed the position of presiding judge of the respondent

court...

to sign the page, where the end of the will is found, at the
left hand margin of that page...

Meanwhile, the petitioner filed a motion for the

appointment of special administrator.

On the other hand, the petitioner maintains that Article

805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the
extrinsic validity of the will that the signatures of the
subscribing witnesses should be specifically located at the
end of the will after the signature of the testatrix. He
contends that it would be absurd that the legislature
intended to place so heavy an import on the space or
particular location where the signatures are to be found as
long as this space or particular location wherein the
signatures are found is consistent with good faith and the
honest frailties of human nature.

Subsequently, the new Judge denied the motion for

reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for
the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with
the order requiring him to submit the names of' the
intestate heirs and their addresses.
The petitioner decided to file the present petition...
For the validity of a formal notarial will, does Article 805 of
the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of
the will and in the presence of the testatrix and of one
another?.
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses; it shall
be interpreted to them.
The respondent Judge interprets the above-quoted
provision of law to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the
"end" but an the three subscribing witnesses must also
sign at the same place or at the end, in the presence of
the testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also
the signature of the testator. It is not sufficient compliance

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will
must be subscribed or signed at its end by the testator
himself or by the testator's name written by another
person in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another...
It must be noted that the law uses the
terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to
see and take note mentally that those things are, done
which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of
Identification of such paper as the will which was executed
by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it
is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of
the manner of their execution with the end in view of
giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of

13

undue and improper pressure and influence upon the

testator. This objective is in accord with the modern
tendency in respect to the formalities in the execution of a
will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place
of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully
met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary
dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no
question of fraud or substitution behind the questioned
order.
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left
margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that
"This Last Will and Testament consists of two pages
including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this
Court made the following observations with respect to the
purpose of the requirement that the attestation clause
must state the number of pages used:
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of pages
or sheets upon which the will is written, which requirement
has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some
of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re will
of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43
Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is
different. While the attestation clause does not state the
number of sheets or pages upon which the will is written,

however, the last part of the body of the will contains a

statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid
rule of construction and places it within the realm of
similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from
being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following
ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not
only (sic) the fact that the testatrix and two other
witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over
whose conduct she had no control where the purpose of
the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling
it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The
orders of the respondent court which denied the probate
of tile will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special
administrator are set aside. The respondent court is
ordered to allow the probate of the will and to conduct
further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez
and Relova, JJ., concur.
Teehankee, J, is on leave.

CALDE V. CA, 233 SCRA 376

[G.R. No. 93980. June 27, 1994.]

14

CLEMENTE CALDE, Petitioner, v. THE COURT OF

APPEALS, PRIMO AGAWIN and DOMYAAN
APED, Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE

COURT OF APPEALS; RULE; CASE AT BAR, AN EXCEPTION.
The question in the case at bench is one of fact:
whether or not, based on the evidence submitted,
respondent appellate court erred in concluding that both
decedents Last Will and Testament, and its Codicil were
subscribed by the instrumental witnesses on separate
occasions. As a general rule, factual findings of the Court
of Appeals are considered final and conclusive, and cannot
be reviewed on appeal to this court. In the present
instance, however, there is reason to make an exception
to that rule, since the finding of the respondent court is
contrary to that of the trial court.
2. ID.; ID.; SOURCES THEREOF; EXPLAINED. It is
accepted that there are three sources from which a
tribunal may properly acquire knowledge for making its
decisions, namely: circumstantial evidence, testimonial
evidence, and real evidence or autoptic proference.
Wigmore explains these sources as follows: "If, for
example, it is desired to ascertain whether the accused
has lost his right hand and wears an iron hook in place of
it, one source of belief on the subject would be the
testimony of a witness who had seen the arm; in believing
this testimonial evidence, there is an inference from the
human assertion to the fact asserted. A second source of
belief would be the mark left on some substance grasped
or carried by the accused; in believing this circumstantial
evidence, there is an inference from the circumstance to
the thing producing it. A third source of belief remains,
namely, the inspection by the tribunal of the accuseds
arm. This source differs from the other two in committing
any step of conscious inference or reasoning, and in
proceeding by direct self-perception, or autopsy. "It is
unnecessary, for present purposes, to ask whether this is
not, after all, a third source of inference, i.e., an inference
from the impressions or perceptions of the tribunal to the
objective existence of the thing perceived. The law does
not need and does not attempt to consider theories of
psychology as to the subjectivity of knowledge or the
mediateness of perception. It assumes the objectivity of
external nature; and, for the purposes of judicial
investigation, a thing perceived by the tribunal as existing
does exist. "There are indeed genuine cases of inference
by the tribunal from things perceived to other things
unperceived as, for example, from a persons size,
complexion, and features, to his age; these cases of a real
use of inference can be later more fully distinguished . . . .
But we are here concerned with nothing more than
matters directly perceived for example, that a person is
of small height or is of dark complexion; as to such
matters, the perception by the tribunal that the person is
small or large, or that he has a dark or light complexion, is
a mode of acquiring belief which is independent of
inference from either testimonial or circumstantial
evidence. It is the tribunals self-perception, or autopsy, of
the thing itself. "From the point of view of the litigant party
furnishing this source of belief, it may be termed Autoptic
Proference."..
3. ID.; ID.; ID.; RULE WHEN AUTOPTIC PROFERENCE
CONTRADICTS TESTIMONIAL EVIDENCE. In the case at

bench, the autoptic proference contradicts the testimonial

evidence produced by petitioner. The will and its codicil,
upon inspection by the respondent court, show in black
and white or more accurately, in black and blue that
more than one pen was used by the signatories thereto.
Thus, it was not erroneous nor baseless for respondent
court to disbelieve petitioners claim that both
testamentary documents in question were subscribed to in
accordance with the provisions of Art. 805 of the Civil
Code.
4. ID.; ID.; WEIGHT OF EVIDENCE; TESTIMONY OF NOTARY
PUBLIC ACKNOWLEDGING THE WILL, NOT ACCORDED
GREAT WEIGHT IN CASE AT BAR. Neither did respondent
court err when it did not accord great weight to the
testimony of Judge Tomas A. Tolete. It is true that his
testimony contains a narration of how the two
testamentary documents were subscribed and attested to,
starting from decedents thumbmarking thereof, to the
alleged signing of the instrumental witnesses thereto in
consecutive order. Nonetheless, nowhere in Judge Toletes
testimony is there any kind of explanation for the
different-colored signatures on the testaments.
DECISION
PUNO, J.:
This is a petition for review by certiorari of the Decision,
dated March 27, 1990, of the Court of Appeals 1 in CA-G.R.
CV No. 19071, disallowing probate of the Last Will and
Codicil executed by Calibia Lingdan Bulanglang, who died
on March 20, 1976.
The records show that decedent left behind nine thousand
pesos (P9,000.00) worth of property. She also left a Last
Will and Testament, dated October 30, 1972, and a Codicil
thereto, dated July 24, 1973. Both documents contained
the thumbmarks of decedent. They were also signed by
three (3) attesting witnesses each, and acknowledged
before Tomas A. Tolete, then the Municipal Judge and
Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a
Petition for its allowance before the RTC of Bontoc, Mt.
Province, Br. 36. He died during the pendency of the
proceedings, and was duly substituted by petitioner.
Private respondents, relatives of decedent, opposed the
Petition filed by Calde, on the following grounds: that the
will and codicil were written in Ilocano, a dialect that
decedent did not know; that decedent was mentally
incapacitated to execute the two documents because of
her advanced age, illness and deafness; that decedents
thumbmarks were procured through fraud and undue
influence; and that the codicil was not executed in
accordance with law.
On June 23, 1988, the trial court rendered judgment on
the case, approving and allowing decedents will and its
codicil. The decision was appealed to and reversed by the
respondent Court of Appeals. It held:
". . . (T)he will and codicil could pass the safeguards under
Article 805 of the New Civil Code but for one crucial factor
of discrepancy in the color of ink when the instrumental
witnesses affixed their respective signatures. When
subjected to cross-examination, Codcodio Nacnas as
witness testified as follows:
Q: And all of you signed on the same table?
A: Yes, sir.

15

Q: And when you were all signing this Exhibit B and

Exhibit B-1, Exhibit B and B-1 which is the testament
was passed around all of you so that each of you will sign
consecutively?
A: Yes, sir.
Q: Who was the first to sign?
A: Calibia Lingdan Bulanglang.
Q: After Calibia Lingdan Bulanglang was made to sign I
withdraw the question. How did Calibia Lingdan
Bulanglang sign the last will and testament?
A: She asked Judge Tolete the place where she will affix
her thumbmark so Judge Tolete directed her hand or her
thumb to her name.
Q: After she signed, who was the second to sign allegedly
all of you there present?
A: Jose Becyagen.
Q: With what did Jose Becyagen sign the testament,
Exhibit B and B-1?
A: Ballpen.
Q: And after Jose Becyagen signed his name with the
ballpen, who was the next to sign?
A: Me, sir.
Q: And Jose Becyagen passed you the paper and the
ballpen, Exhibit B and B-1 plus the ballpen which used
to sign so that you could sign your name, is that correct?
A: Yes, sir.
Q: And then after you signed, who was the next to sign
the document, Exhibit B and B-1?
A: Hilario Coto-ong.
Q: So you passed also to Hilario Coto-ong the same
Exhibit B and B-1 and the ballpen so that he could sign
his name as witness to the document, is it not?
A: Yes, sir.
Q: And that is the truth and you swear that to be the truth
before the Honorable Court?
ATTY. DALOG: He already testified under oath, Your Honor.
COURT: Witness may answer.
A: Yes, sir.
"For his part, Obanan Ticangan likewise admitted during
cross-examination in regard to the codicil that:
"Q: When you signed Exhibit D and D-1, did you all sign
with the same ballpen?
A: One.
"Such admissions from instrumental witnesses are indeed
significant since they point to no other conclusion than
that the documents were not signed by them in their
presence but on different occasions since the same
ballpen used by them supposedly in succession could not
have produced a different color from blue to black and
from black to blue. In fact, the attestation clause followed
the same pattern. The absurd sequence was repeated
when they signed the codicil, for which reason, We have
no other alternative but to disallow the Last Will and
Codicil. Verily, if the witnesses and testatrix used the same

ballpen, then their signatures would have been in only one

color, not in various ones as shown in the documents.
Moreover, the signatures, in different colors as they are,
appear to be of different broadness, some being finer than
the others, indicating that, contrary to what the
testamentary witnesses declared on the witness stand, not
only one ballpen was used, and, therefore, showing that
the documents were not signed by the testatrix and
instrumental witnesses in the presence of one
another. . . ." (Rollo, pp. 44-46. Citations omitted.)
Petitioner unsuccessfully moved for reconsideration of the
impugned Decision. His motion was denied by the
respondent court in its Order, dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the
correctness of the respondent courts conclusion that both
decedents will and codicil were not subscribed by the
witnesses in the presence of the testator and of one
another, contrary to the requirements of Article 805 of the
Civil Code. He contends that:
"1. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
LAW OR WITH THE APPLICABLE DECISION OF THE
SUPREME COURT BY CONCLUDING BASED ON PURE
SPECULATION OR SURMISES AND WITHOUT REGARD TO
THE TESTIMONY OF JUDGE TOLETE WHICH IS AN
EVIDENCE OF SUBSTANCE THAT THE WILL AND THE
CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG
WERE SIGNED BY HER AND BY HER INSTRUMENTAL
WITNESSES ON DIFFERENT OCCASIONS;
"2. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
LAW OR WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT BY DISREGARDING THE PROBATIVE
VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL
AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA
LINGDAN BULANGLANG."..
The petition must fail.
The question in the case at bench is one of fact: whether
or not, based on the evidence submitted, respondent
appellate court erred in concluding that both decedents
Last Will and Testament, and its Codicil were subscribed by
the instrumental witnesses on separate occasions. As a
general rule, factual findings of the Court of Appeals are
considered final and conclusive, and cannot be reviewed
on appeal to this court. In the present instance, however,
there is reason to make an exception to that rule, since
the finding of the respondent court is contrary to that of
the trial court, viz.:
". . . (Private respondents) pointed out however, that the
assertions of petitioners witnesses are rife with
contradictions, particularly the fact that the latters
signatures on the documents in issue appear to have been
written in ballpens of different colors contrary to the
statements of said witnesses that all of them signed with
only one ballpen. The implication is that the subscribing
witnesses to the Will and Codicil, and the testatrix did not
simultaneously sign each of the documents in one sitting
but did it piecemeal a violation of Art. 805 of the Code.
This conclusion of the (private respondents) is purely
circumstantial. From this particular set of facts, numerous
inferences without limits can be drawn depending on
which side of the fence one is on. For instance, considering
the time interval that elapsed between the making of the
Will and Codicil, and up to the filing of the petition for

16

probate, the possibility is not remote that one or two of

the attesting witnesses may have forgotten certain details
that transpired when they attested the documents in
question. . . ." (Rollo, pp. 36-37.)
A review of the facts and circumstances upon which
respondent Court of Appeals based its impugned finding,
however, fails to convince us that the testamentary
documents in question were subscribed and attested by
the instrumental witnesses during a single occasion.
As sharply noted by respondent appellate court, the
signatures of some attesting witnesses in decedents will
and its codicil were written in blue ink, while the others
were in black. This discrepancy was not explained by
petitioner. Nobody of his six (6) witnesses testified that
two pens were used by the signatories on the two
documents. In fact, two (2) of petitioners witnesses even
testified that only one (1) ballpen was used in signing the
two testamentary documents.
It is accepted that there are three sources from which a
tribunal may properly acquire knowledge for making its
decisions, namely: circumstantial evidence, testimonial
evidence, and real evidence or autoptic proference.
Wigmore explains these sources as follows:
"If, for example, it is desired to ascertain whether the
accused has lost his right hand and wears an iron hook in
place of it, one source of belief on the subject would be
the testimony of a witness who had seen the arm; in
believing this testimonial evidence, there is an inference
from the human assertion to the fact asserted. A second
source of belief would be the mark left on some substance
grasped or carried by the accused; in believing this
circumstantial evidence, there is an inference from the
circumstance to the thing producing it. A third source of
belief remains, namely, the inspection by the tribunal of
the accuseds arm. This source differs from the other two
in committing any step of conscious inference or
reasoning, and in proceeding by direct self-perception, or
autopsy.
"It is unnecessary, for present purposes, to ask whether
this is not, after all, a third source of inference, i.e., an
inference from the impressions or perceptions of the
tribunal to the objective existence of the thing perceived.
The law does not need and does not attempt to consider
theories of psychology as to the subjectivity of knowledge
or the mediateness of perception. It assumes the
objectivity of external nature; and, for the purposes of
judicial investigation, a thing perceived by the tribunal as
existing does exist.
"There are indeed genuine cases of inference by the
tribunal from things perceived to other things unperceived
as, for example, from a persons size, complexion, and
features, to his age; these cases of a real use of inference
can be later more fully distinguished . . . . But we are here
concerned with nothing more than matters directly
perceived for example, that a person is of small height
or is of dark complexion; as to such matters, the
perception by the tribunal that the person is small or
large, or that he has a dark or light complexion, is a mode
of acquiring belief which is independent of inference from
either testimonial or circumstantial evidence. It is the
tribunals self-perception, or autopsy, of the thing itself.
"From the point of view of the litigant party furnishing this
source of belief, it may be termed Autoptic Proference." 3
(Citations omitted.)

In the case at bench, the autoptic proference contradicts

the testimonial evidence produced by petitioner. The will
and its codicil, upon inspection by the respondent court,
show in black and white or more accurately, in black
and blue that more than one pen was used by the
signatories thereto. Thus, it was not erroneous nor
baseless for respondent court to disbelieve petitioners
claim that both testamentary documents in question were
subscribed to in accordance with the provisions of Art. 805
of the Civil Code.
Neither did respondent court err when it did not accord
great weight to the testimony of Judge Tomas A. Tolete. It
is true that his testimony contains a narration of how the
two testamentary documents were subscribed and
attested to, starting from decedents thumbmarking
thereof, to the alleged signing of the instrumental
witnesses thereto in consecutive order. Nonetheless,
nowhere in Judge Toletes testimony is there any kind of
explanation for the different-colored signatures on the
testaments.
IN VIEW WHEREOF, the instant Petition for Review is
DENIED. The Decision of respondent Court of Appeals,
dated March 27, 1988, in CA-G.R. CV No. 19071
disallowing the Last Will and Testament, and the Codicil
thereto, of the decedent Calibia Lingdan Bulanglang is
AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

ABANGAN V. ABANGAN, 40 PHIL. 476

[G.R. No. 13431. November 12, 1919. ]
In re will of Ana Abangan. GERTRUDIS ABANGAN,
executrix-appellee, v. ANASTACIA ABANGAN ET AL.,
opponents-appellants.
Filemon Sotto for Appellants.
M. Jesus Cuenco for Appellee.
SYLLABUS
1. WILLS; ATTESTATION. In a will consisting of two
sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator
and three witnesses and the second contains only the
attestation clause and is signed also at the bottom by the
three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the
witnesses, or be paged.
2. ID.; ID; TESTATORS SIGNATURE. The testators
signature is not necessary in the attestation clause
because this, as its name implies, appertains only to the
witnesses and not to the testator.
3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. The
circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this

17

locality where the testatrix was a neighbor is enough, in

the absence of any proof to the contrary, to presume that
she knew this dialect in which her will is written.

DECISION
AVANCEA, J. :

On September 19, 1917, the Court of First Instance of

Cebu admitted to probate Ana Abangans will executed
July, 1916. From this decision the opponents appealed.
Said document, duly probated as Ana Abangans will,
consists of two sheets, the first of which contains all of the
disposition of the testatrix, duly signed at the bottom by
Martin Montalban (in the name and under the direction of
the testatrix) and by three witnesses. The following sheet
contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and
these omissions, according to appellants contention, are
defects whereby the probate of the will should have been
denied. We are of the opinion that the will was duly
admitted to probate.
In requiring that each and every sheet of the will should
also be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645
(which is the one applicable in the case) evidently has for
its object (referring to the body of the will itself) to avoid
the substitution of any of said sheets, thereby changing
the testators dispositions. But when these dispositions are
wholly written on only one sheet signed at the bottom by
the testator and three witnesses (as the instant case),
their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly,
the case of a will written on several sheets and must have
referred to the sheets which the testator and the
witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that
this sheet, already signed at the bottom, be signed twice.
We cannot attribute to the statute such an intention. As
these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if
the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be
unnecessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would
add nothing. We cannot assume that the statute regards
of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider
that their signatures written on the bottom do not
guaranty the authenticity of the sheet but, if repeated on
the margin, give sufficient security.
In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part
of the sheet, it is likewise clear that the object of Act No.
2645 is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are
written .on one sheet only, the object of the statute
disappears because the removal of this single sheet,
although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation
clause. Wherefore, without considering whether or not this
clause is an essential part of the will, we hold that in the

one accompanying the will in question, the signatures of

the testatrix and of the three witnesses on the margin and
the numbering of the pages of the sheet are formalities
not required by the statute. Moreover, referring specially
to the signature of the testatrix, we can add that same is
not necessary in the attestation clause because this, as its
name implies, appertains only to the witnesses and not to
the testator since the latter does not attest, but executes,
the will.
Synthesizing our opinion, we hold that in a will consisting
of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by
the testator and three witnesses and the second contains
only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the
testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators last
will, must be disregarded.
As another ground for this appeal, it is alleged the records
do not show that the testatrix knew the dialect in which
the will is written. But the circumstance appearing in the
will itself that same was executed in the city of Cebu and
in the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the
contrary, to presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the judgment appealed
from is hereby affirmed with costs against the appellants.
So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and
Malcolm, JJ., concur.

ICASIANO V. ICASIANO, 11 SCRA 422

[G.R. No. L-18979. June 30, 1964.]
IN THE MATTER OF THE TESTATE ESTATE OF THE
LATE JOSEFA VILLACORTA. CELSO
ICASIANO, Petitioner-Appellee, v. NATIVIDAD
ICASIANO and ENRIQUE ICASIANO,Oppositors-

18

Appellants.
Jose W. Diokno for Petitioner-Appellee.
Rosendo J. Tansinsin for oppositor-appellant Natividad Ino.
Jaime R. Nuevas for oppositor-appellant Enriquez Ino.

SYLLABUS

1. WILLS; PROBATE; POLICY OF COURT AGAINST UNDUE

CURTAILMENT OF TESTAMENTARY PRIVILEGE. The
precedents cited in the case at bar exemplify the Courts
policy to require satisfaction of the legal requirements in
the probate of a will in order to guard against fraud and
bad faith but without undue or unnecessary curtailment of
the testamentary privilege.
2. ID.; ID.; HANDWRITING EXPERT MUST HAVE SUFFICIENT
STANDARDS OF COMPARISON TO PROVE FORGERY OF
TESTATRIXS SIGNATURE. The opinion of a handwriting
expert trying to prove forgery of the testatrixs signature
fails to convince the court, not only because it is directly
contradicted by another expert but principally because of
the paucity of the standards used by him (only three other
signatures), considering the advanced age of the testatrix,
the evident variability of her signature, and the effect of
writing fatigue.
3. ID.; ID.; VARIANCE IN INK COLOR NOT RELIABLE WHEN
WRITINGS AFFIXED TO DIFFERENT KINDS OF PAPER. The
slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable,
considering that the standard and challenged writings
were affixed to different kinds of paper.
4. ID.; ID.; FRAUD OF UNDUE INFLUENCE, DIVERSITY OF
APPORTIONMENT AND PROHIBITION AGAINST CONTEST NO
EVIDENCE OF. Neither diversity of apportionment nor
prohibition against contest is evidence of fraud or undue
influence in the execution of a will.
5. ID.; ID.; FRAUD AND UNDUE INFLUENCE ARE
REPUGNANT ALLEGATIONS. Allegation of fraud and
undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows
absence of definite evidence against the validity of the
will.
6. ID.; ID.; INADVERTENT FAILURE OF AN ATTESTING
WITNESS TO AFFIX HIS SIGNATURE TO ONE PAGE OF A
WILL NOT FATAL. The inadvertent failure of an attesting
witness to affix his signature to one page of a testament,
due to the simultaneous lifting of two pages in the course
of signing, is not per se sufficient to justify denial of
probate.
7. ID.; ID.; SIGNED CARBON DUPLICATE OF WILL NEEDS NO
PUBLICATION. That the signed carbon duplicate of a will
was produced and admitted without a new publication
does not affect the jurisdiction of the probate court,
already conferred by the original publication of the petition
for probate, where the amended petition did not
substantially alter the first one filed but merely
supplemented it by disclosing the existence of said
duplicate.

DECISION

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of

Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true
last will and testament of Josefa Villacorte, deceased, and
appointing as executor Celso Ino, the person named
therein as such.
This special proceeding was begun on October 2, 1958 by
a petition for the allowance and admission to probate of
the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of petitioner
Celso Ino as executor thereof.
The court set the proving of the alleged will for November
8, 1958, and caused notice thereof to be published for
three (3) successive weeks, previous to the time
appointed, in the newspaper "Manila Chronicle", and also
caused personal service of copies thereof upon the known
heirs.
On October 31, 1958, Natividad Ino, a daughter of the
testatrix, filed her opposition; and on November 10, 1958,
she petitioned to have herself appointed as a special
administrator, to which proponent objected. Hence, on
November 18, 1958, the court issued an order appointing
the Philippine Trust Company as special administrator.
On February 18, 1959, Enrique Ino, a son of the testatrix,
also filed a manifestation adopting as his own Natividads
opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced
the introduction of his evidence; but on June 1, 1959, he
filed a motion for the admission of an amended and
supplemental petition, alleging that the decedent left a
will executed in duplicate with all the legal requirements,
and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on
or about May 26, 1959. On June 17, 1959, oppositors
Natividad Ino de Gomez and Enrique Ino filed their joint
opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the
court admitted said petition; and on July 30, 1959,
oppositor Natividad Ino filed her amended opposition.
Thereafter, the parties presented their respective
evidence, and after several hearings the court issued the
order admitting the will and its duplicate to probate. From
this order, the oppositors appealed directly to this Court,
the amount involved being over P200,000.00, on the
ground that the same is contrary to law and the
evidence.chanrobles virtual lawlibrary
The evidence presented for the petitioner is to the effect
that Josefa Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late Josefa
Villacorte executed a last will and testament in duplicate
at the house of her daughter Mrs. Felisa Ino at Pedro
Guevara Street, Manila, published before and attested by
three instrumental witnesses, namely; attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy; that
the will was acknowledged by the testatrix and by the said
three instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for the
City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the

19

execution and signing of the decedents last will and

testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Ino, and a little girl. Of the said
three instrumental witnesses to the execution of the
decedents last will and testament attorneys Torres and
Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public
before whom the will was acknowledged by the testatrix
and attesting witnesses, and also attorney Fermin
Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one
original and two copies of Josefa Villacortes last will and
testament at his house in Baliuag, Bulacan, but he brought
only one original and one signed copy to Manila, retaining
one unsigned copy in Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition
and marked as Exhibit "A", consists of five pages, and
while signed at the end and in every page, it does not
contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but the
duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses
in each and every page.
The testimony presented by the proponents of the will
tends to show that the original of the will and its duplicate
were subscribed at the end and on the left margin of each
and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses
in the testatrixs presence and in that of one another as
witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original; that pages of
the original and duplicate of said will were duly numbered;
that the attestation clause thereof contains all the facts
required by law to be recited therein and is signed by the
aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix; that the
attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on
one single occasion in duplicate copies; and that both the
original and the duplicate copy were duly acknowledged
before Notary Public Jose Oyengco Ong of Manila on the
same date June 2, 1956.
Witness Natividad, who testified on his failure to sign page
three (3) of the original, admits that he may have lifted
two pages instead of one when he signed the same, but
affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony
to the effect that the signatures of the testatrix in the
duplicate (Exhibit A-1) are not genuine, nor were they
written or affixed on the same occasion as the original,
and further aver that granting that the documents were
genuine, they were executed through mistake and with
undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the
wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts
and circumstances surrounding the execution of the will
and the provisions and dispositions thereof, whereby
proponents- appellees stand to profit from properties held
by them as attorneys- in-fact of the deceased and not
enumerated or mentioned therein, while oppositorsappellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it,
on penalty of forfeiting their share in the portion of free

disposal.
We have examined the record and are satisfied, as the
trial court was, that the testatrix signed both original and
duplicate copies (Exhibits "A" and "A-1", respectively) of
the will spontaneously, on the same occasion, in the
presence of the three attesting witnesses, the notary
public who acknowledged the will, and Atty. Samson, who
actually prepared the documents; that the will and its
duplicate were executed in Tagalog, a language known to
and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson
together before they were actually signed; that the
attestation clause is also in a language known to and
spoken by the testatrix and the witnesses. The opinion of
expert for oppositors, Mr. Felipe Logan, that the signatures
of the testatrix appealing in the duplicate original were not
written by the same hand, which wrote the signatures in
the original will leaves us unconvinced, not merely
because it is directly contradicted by expert Martin Ramos
for the proponents, but principally because of the paucity
of the standards used by him to support the conclusion
that the differences between the standard and questioned
signatures are beyond the writers range of normal
scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix
besides those affixed to the original of the testament (Exh.
A); and we feel that with so few standards the experts
opinion that the signatures in the duplicate could not be
those of the testatrix becomes extremely hazardous. This
is particularly so since the comparison charts Nos. 3 and 4
fail to show convincingly that there are radical differences
that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident
variability of her signatures, and the effect of writing
fatigue, the duplicate being signed right after the original.
These factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink
in the admitted and questioned signatures does not
appear reliable, considering that standard and challenged
writings were affixed to different kinds of paper, with
different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositors
expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr. Diy,
being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue
influence. The fact that some heirs are more favored than
others is proof of neither (see In re Butalid, 10 Phil. 27;
Bugnao v. Ubag, 14 Phil. 163; Pecson v. Coronel, 45 Phil.
216). Diversity of apportionment is the usual reason for
making a testament; otherwise, the decedent might as
well die intestate. The testamentary disposition that the
heirs should not inquire into other property and that they
should respect the distribution made in the will, under
penalty of forfeiture of their shares in the free part, do not
suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation
which, as shown by ordinary experience, often results in a
sizeable portion of the estate being diverted into the
hands of non- heirs and speculators. Whether these
clauses are valid or not is a matter to be litigated on
another occasion. It is also well to note that, as remarked
by the Court of Appeals in Sideco v. Sideco, 45 Off. Gaz.
168, fraud and undue influence are mutually repugnant
and exclude each other; their joining as grounds for
opposing probate shows absence of definite evidence
against the validity of the will.

20

On the question of law, we hold that the inadvertent

failure of one witness to affix his signature to one page of
a testament, due to the simultaneous lifting of two pages
in the course of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of this page
is assured not only the fact that the testatrix and two
other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over
whose conduct she had no control, where the purpose of
the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil v. Murciano, 88 Phil.
260; 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause."
That the failure of witness Natividad to sign page three (3)
was entirely through pure oversight is shown by his own
testimony as well as by the duplicate copy of the will,
which bears a complete set of signatures in every page.
The text of the attestation clause and the
acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs
from a strict and literal application of the statutory
requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the
law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated
(Abangan v. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a
will, the failure to mark the first page either by letters or
numbers is not a fatal defect (Lopez v. Liboro, 81 Phil.
429). These precedents exemplify the Courts policy to
require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will
is in existence and available, the duplicate (Exh. A-1) is
not entitled to probate. Since they opposed probate of the
original because it lacked one signature in its third page, it
is easily discerned that oppositors-appellants run here into
a dilemma: if the original is defective and invalid, then in
law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the
original is valid and can be probated, then the objection to
the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate,
Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and
admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the
original publication of the petition for probate. The
amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that
new interests were involved (the contents of Exhibit A and
A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved

or claimed that the amendment deprived the appellants of

any substantial right, and we see no error in admitting the
amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from
is affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Concepcion, Paredes, Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

AZUELA V. CA, 487 SCRA 119

[G.R. NO. 122880 : April 12, 2006]
FELIX AZUELA, Petitioner, v. COURT OF APPEALS,
GERALDA AIDA CASTILLO substituted by ERNESTO
G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent),
who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of
this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of
notarial wills, all self-evident in view of Articles 805 and
806 of the Civil Code.
A will whose attestation clause does not contain the
number of pages on which the will is written is
fatally defective. A will whose attestation clause is
not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will
which does not contain an acknowledgment, but a
mere jurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will
with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful
compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article
806 likewise imposes another safeguard to the validity of
notarial wills - that they be acknowledged before a notary
public by the testator and the witnesses. A notarial will
executed with indifference to these two codal provisions
opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10
April 1984 with the Regional Trial Court (RTC) of Manila.
The petition filed by petitioner Felix Azuela sought to
admit to probate the notarial will of Eugenia E. Igsolo,

21

which was notarized on 10 June 1981. Petitioner is the son

of the cousin of the decedent.

kasulatan at sa kaliwang panig ng lahat at bawa't dahon

ng kasulatan ito.

The will, consisting of two (2) pages and written in the

vernacular Pilipino, read in full:

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa
hustong pagi-isip, pag-unawa at memoria ay nag-hahayag
na ito na ang aking huling habilin at testamento, at
binabali wala ko lahat ang naunang ginawang habilin o
testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del
Norte, La Loma sang-ayong sa kaugalian at patakaran ng
simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing alaala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na
siyang nag-alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik
sa inoopahan kong lote, numero 43, Block 24 na pag-aari
ng Pechaten Corporation. Ipinagkakaloob kong buong buo
ang lahat ng karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix
Azuela at ang pagkakaloob kong ito ay walang pasubali't
at kondiciones;
Pangatlo - Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin
na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila
ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa't dahon, sa harap ng
lahat at bawa't sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawa't isa sa amin, sa ilalim ng nasabing

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7,
1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their
signatures on the left-hand margin of both pages of the
will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs,
legatees and devisees of the decedent, namely: petitioner
himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be
allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo
(Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was
so it could be utilized as a defense in several court cases
filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all centering
on petitioner's right to occupy the properties of the
decedent.3 It also asserted that contrary to the
representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her grandchildren,
who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of

22

Bonifacio Igsolo, who died in 1965,4and the mother of a

legitimate child, Asuncion E. Igsolo, who predeceased her
mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was
not executed and attested to in accordance with law. She
pointed out that decedent's signature did not appear on
the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the
central matters to this petition.
After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992.6The RTC favorably took into
account the testimony of the three (3) witnesses to the
will, Quirino Agrava, Lamberto Leano, and Juanito Estrada.
The RTC also called to fore "the modern tendency in
respect to the formalities in the execution of a will x x x
with the end in view of giving the testator more freedom
in expressing his last wishes;"7 and from this perspective,
rebutted oppositor's arguments that the will was not
properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of
the testimonies of the subscribing and attesting witnesses,
and having in mind the modern tendency in respect to the
formalities in the execution of a will, i.e., the liberalization
of the interpretation of the law on the formal requirements
of a will with the end in view of giving the testator more
freedom in expressing his last wishes, this Court is
persuaded to rule that the will in question is authentic and
had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has
noted that at the end of the will after the signature of the
testatrix, the following statement is made under the subtitle, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia N.
Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa't dahon, sa harap ng
lahat at bawa't sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawa't isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawa't dahon
ng kasulatan ito."
The aforequoted declaration comprises the attestation
clause and the acknowledgement and is considered by
this Court as a substantial compliance with the
requirements of the law.
On the oppositor's contention that the attestation clause
was not signed by the subscribing witnesses at the bottom
thereof, this Court is of the view that the signing by the
subscribing witnesses on the left margin of the second
page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof,

substantially satisfies the purpose of identification and

attestation of the will.
With regard to the oppositor's argument that the will was
not numbered correlatively in letters placed on upper part
of each page and that the attestation did not state the
number of pages thereof, it is worthy to note that the will
is composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation
clause and acknowledgement. Such being so, the defects
are not of a serious nature as to invalidate the will. For the
same reason, the failure of the testatrix to affix her
signature on the left margin of the second page, which
contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor's assertion that the signature of
the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of
the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by
Ernesto Castillo, who had substituted his since deceased
mother-in-law, Geralda Castillo. In a Decision dated 17
August 1995, the Court of Appeals reversed the trial court
and ordered the dismissal of the petition for probate. 9 The
Court of Appeals noted that the attestation clause failed to
state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of
the Civil Code that "the number of pages used in a notarial
will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to
what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles
805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some

23

other person to write his name, under his express

direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.

Against these cited cases, petitioner cites Singson v.

Florentino19 and Taboada v. Hon. Rosal,20 wherein the
Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state
the number of pages of the will. Yet the appellate court
itself considered the import of these two cases, and made
the following distinction which petitioner is unable to
rebut, and which we adopt with approval:

Art. 806. Every will must be acknowledged before a notary

public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.

Even a cursory examination of the Will (Exhibit "D"), will

readily show that the attestation does not state the
number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.

The appellate court, in its Decision, considered only one

defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the will
itself reveals several more deficiencies.

We are not impervious of the Decisions of the Supreme

Court in "Manuel Singson v. Emilia Florentino, et al., 92
Phil. 161 and Apolonio [Taboada] v. Hon. Avelino Rosal, et
al., 118 SCRA 195," to the effect that a will may still be
valid even if the attestation does not contain the number
of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the
case of "Manuel Singson v. Emilia Florentino, et al., supra,"
although the attestation in the subject Will did not state
the number of pages used in the will, however, the same
was found in the last part of the body of the Will:

As admitted by petitioner himself, the attestation clause

fails to state the number of pages of the will.12 There was
an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number
of pages in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing
the trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court
noted that among the defects of the will in question was
the failure of the attestation clause to state the number of
pages contained in the will.15 In ruling that the will could
not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day:
"The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document
might easily be so prepared that the removal of a
sheet would completely change the testamentary
dispositions of the will and in the absence of a
statement of the total number of sheets such
removal might be effected by taking out the sheet
and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the
total number of sheets is stated in the attestation clause
the falsification of the document will involve the inserting
of new pages and the forging of the signatures of the
testator and witnesses in the margin, a matter attended
with much greater difficulty."16
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied
that the x x x requirement affords additional security
against the danger that the will may be tampered with;
and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18

"x x x
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of pages
or sheets upon which the will is written, which requirement
has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some
of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re
Will of Andrada, 42 Phil. 180; Uy Coque v. Navas L. Sioca,
43 Phil., 405; Gumban v. Gorcho, 50 Phil. 30; Quinto v.
Morata, 54 Phil. 481; Echevarria v. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is
different. While the attestation clause does not state the
number of sheets or pages upon which the will is
written, however, the last part of the body of the will
contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm
of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from
being defeated by purely technical considerations." (page
165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda v. Hon. Avelino Rosal, et al." supra,
the notarial acknowledgement in the Will states the
number of pages used in the:

24

"x x x
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left
margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that
"this Last Will and Testament consists of two pages
including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages
used in the will is not stated in any part of the Will. The
will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be
stated.21
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of
wills was Section
618 of the Code of Civil Procedure. 22 Reliance on these
cases remains apropos, considering that the requirement
that the attestation state the number of pages of the will
is extant from Section 618.23 However, the enactment of
the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar
as the attestation clause is concerned, that may vary from
the philosophy that governed these two cases. Article 809
of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of
attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in
fact executed and attested in substantial compliance with
all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil
Code Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the
[law] on [wills] in this project consists in the [liberalization]
of the manner of their execution with the end in view of
giving the testator more [freedom] in [expressing] his last
wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of
wills."24 However, petitioner conveniently omits the
qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such
liberalization be "but with sufficient safeguards and
restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence
upon the testator."25

Caneda v. Court of Appeals26 features an extensive

discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of
interpretation of the legal formalities required in the
execution of the attestation clause in wills.27 Uy Coque and
Andrada are cited therein, along with several other cases,
as examples of the application of the rule of strict
construction.28 However, the Code Commission opted to
recommend a more liberal construction through the
"substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes
as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those
defects that can be supplied by an examination of the will
itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page;
whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in
the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons
required to sign did so in the presence of each
other must substantially appear in the attestation
clause, being the only check against perjury in the
probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice
J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be
simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed
to state that the witnesses subscribed their respective
signatures to the will in the presence of the testator and of
each other,30 the other omission cited by Justice J.B.L.
Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule,
as it now stands, is that omission which can be supplied
by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those
omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself." 31 Thus,
a failure by the attestation clause to state that the testator
signed every page can be liberally construed, since that
fact can be checked by a visual examination; while a
failure by the attestation clause to state that the
witnesses signed in one another's presence should be
considered a fatal flaw since the attestation is the only
textual guarantee of compliance.32
The failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or

25

omission of one or some of its pages and to prevent any

increase or decrease in the pages.33 The failure to state
the number of pages equates with the absence of an
averment on the part of the instrumental witnesses as to
how many pages consisted the will, the execution of which
they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how
many pages it is comprised of, as was the situation
in Singsonand Taboada. However, in this case, there could
have been no substantial compliance with the
requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will
itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations
of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that
these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or
herself had decided to convey property post mortemin the
manner established in the will.35 The transcendent
legislative intent, even as expressed in the cited
comments of the Code Commission, is for the
fruition of the testator's incontestable desires, and
not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself reveals
a couple of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not signed by
the instrumental witnesses. While the signatures of
the instrumental witnesses appear on the left-hand margin
of the will, they do not appear at the bottom of the
attestation clause which after all consists of their
averments before the notary public.
Cagro v. Cagro is material on this point. As in this case,
"the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses
on the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking
through Chief Justice Paras, ruled that the attestation
clause had not been duly signed, rendering the will fatally
defective.
36

There is no question that the signatures of the three

witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the

appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the
will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of
the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on
a subsequent occasion and in the absence of the testator
and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro.
Article 805 particularly segregates the requirement that
the instrumental witnesses sign each page of the will,
from the requisite that the will be "attested and
subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature
are distinct from each other. The signatures on the lefthand corner of every page signify, among others, that the
witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are
referring to the statements contained in the attestation
clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses'
undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the
witnesses in this case signed the attestation clause itself,
but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental
witnesses' signatures on each and every page, the fact
must be noted that it is the attestation clause which
contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses,
and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is
written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed
the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that
the witnesses have stated these elemental facts would be
their signatures on the attestation clause.

26

Thus, the subject will cannot be considered to have been

validly attested to by the instrumental witnesses, as they
failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the
denial of this petition should also hinge. The requirement
under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses"
has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The
non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio
Y. Bautista, wrote "Nilagdaan ko at ninotario ko
ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."40 By no manner of contemplation can those
words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a
deed in going before some competent officer or court and
declaring it to be his act or deed.41 It involves an extra
step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested
to the notary that the same is his/her own free act and
deed.
It might be possible to construe the averment as a jurat,
even though it does not hew to the usual language
thereof. A jurat is that part of an affidavit where the notary
certifies that before him/her, the document was
subscribed and sworn to by the executor. 42 Ordinarily, the
language of the jurat should avow that the document was
subscribed and sworn before the notary public, while in
this case, the notary public averred that he himself
"signed and notarized" the document. Possibly though, the
word "ninotario" or "notarized" encompasses the signing
of and swearing in of the executors of the document,
which in this case would involve the decedent and the
instrumental witnesses.
Yet even if we consider what was affixed by the notary
public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed
and sworn to. The will does not present any textual proof,
much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their
own free act or deed. The acknowledgment made in a will
provides for another all-important legal safeguard against
spurious wills or those made beyond the free consent of
the testator. An acknowledgement is not an empty
meaningless act.43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before
an officer of the law that they had executed and
subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those

executed without the free consent of the testator. It also

provides a further degree of assurance that the testator is
of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the
will.
It may not have been said before, but we can assert the
rule, self-evident as it is under Article 806. A notarial will
that is not acknowledged before a notary public by
the testator and the witnesses is fatally defective,
even if it is subscribed and sworn to before a notary
public.
There are two other requirements under Article 805 which
were not fully satisfied by the will in question. We need
not discuss them at length, as they are no longer material
to the
disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and
every page of the will on the left margin, except the last;
and that all the pages shall be numbered correlatively in
letters placed on the upper part of each page. In this case,
the decedent, unlike the witnesses, failed to sign both
pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its
first page. Also, the will itself is not numbered correlatively
in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused
the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by
themselves, may not be sufficient to deny probate to a
will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on,
though indicative as they may be of a general lack of due
regard for the requirements under Article 805 by whoever
executed the will.
All told, the string of mortal defects which the will in
question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against
petitioner.
SO ORDERED.

LEE V. TAMBAGO, 544 SCRA 393

[A.C. NO. 5281 : February 12, 2008]
MANUEL L. LEE, Petitioner, v. ATTY. REGINO B.
TAMBAGO, Respondent.
RESOLUTION
CORONA, J.:

27

In a letter-complaint dated April 10, 2000, complainant

Manuel L. Lee charged respondent Atty. Regino B.
Tambago with violation of the Notarial Law and the ethics
of the legal profession for notarizing a spurious last will
and testament.
In his complaint, complainant averred that his father, the
decedent Vicente Lee, Sr., never executed the contested
will. Furthermore, the spurious will contained the forged
signatures of Cayetano Noynay and Loreto Grajo, the
purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his
entire estate to his wife Lim Hock Lee, save for a parcel of
land which he devised to Vicente Lee, Jr. and Elena Lee,
half-siblings of complainant.
The will was purportedly executed and acknowledged
before respondent on June 30, 1965.1Complainant,
however, pointed out that the residence certificate2 of the
testator noted in the acknowledgment of the will was
dated January 5, 1962.3 Furthermore, the signature of the
testator was not the same as his signature as donor in a
deed of donation4 (containing his purported genuine
signature). Complainant averred that the signatures of his
deceased father in the will and in the deed of donation
were "in any way (sic) entirely and diametrically opposed
from (sic) one another in all angle[s]." 5
Complainant also questioned the absence of notation of
the residence certificates of the purported witnesses
Noynay and Grajo. He alleged that their signatures had
likewise been forged and merely copied from their
respective voters' affidavits.
Complainant further asserted that no copy of such
purported will was on file in the archives division of the
Records Management and Archives Office of the National
Commission for Culture and the Arts (NCCA). In this
connection, the certification of the chief of the archives
division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to
an AFFIDAVIT executed by BARTOLOME RAMIREZ on June
30, 1965 and is available in this Office['s] files.6
Respondent in his comment dated July 6, 2001 claimed
that the complaint against him contained false allegations:
(1) that complainant was a son of the decedent Vicente
Lee, Sr. and (2) that the will in question was fake and
spurious. He alleged that complainant was "not a
legitimate son of Vicente Lee, Sr. and the last will and
testament was validly executed and actually notarized by
respondent per affidavit7 of Gloria Nebato, common-law
wife of Vicente Lee, Sr. and corroborated by the joint
affidavit8 of the children of Vicente Lee, Sr., namely Elena
N. Lee and Vicente N. Lee, Jr. xxx."9
Respondent further stated that the complaint was filed
simply to harass him because the criminal case filed by

complainant against him in the Office of the Ombudsman

"did not prosper."
Respondent did not dispute complainant's contention that
no copy of the will was on file in the archives division of
the NCCA. He claimed that no copy of the contested will
could be found there because none was filed.
Lastly, respondent pointed out that complainant had no
valid cause of action against him as he (complainant) did
not first file an action for the declaration of nullity of the
will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred
the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.10
In his report, the investigating commissioner found
respondent guilty of violation of pertinent provisions of the
old Notarial Law as found in the Revised Administrative
Code. The violation constituted an infringement of legal
ethics, particularly Canon 111 and Rule 1.0112 of the Code
of Professional Responsibility (CPR). 13 Thus, the
investigating commissioner of the IBP Commission on Bar
Discipline recommended the suspension of respondent for
a period of three months.
The IBP Board of Governors, in its Resolution No. XVII2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the
above-entitled case, herein made part of this Resolution as
Annex "A"; and, finding the recommendation fully
supported by the evidence on record and the applicable
laws and rules, and considering Respondent's failure to
comply with the laws in the discharge of his function as a
notary public, Atty. Regino B. Tambago is hereby
suspended from the practice of law for one year and
Respondent's notarial commission is Revoked and
Disqualified fromreappointment as Notary Public for two
(2) years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his
death.15 A will may either be notarial or holographic.
The law provides for certain formalities that must be
followed in the execution of wills. The object of solemnities
surrounding the execution of wills is to close the door on
bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. 16
A notarial will, as the contested will in this case, is
required by law to be subscribed at the end thereof by the
testator himself. In addition, it should be attested and

28

subscribed by three or more credible witnesses in the

presence of the testator and of one another.17
The will in question was attested by only two witnesses,
Noynay and Grajo. On this circumstance alone, the will
must be considered void.18 This is in consonance with the
rule that acts executed against the provisions of
mandatory or prohibitory laws shall be void, except when
the law itself authorizes their validity.
The Civil Code likewise requires that a will must be
acknowledged before a notary public by the testator and
the witnesses.19 The importance of this requirement is
highlighted by the fact that it was segregated from the
other requirements under Article 805 and embodied in a
distinct and separate provision.20
An acknowledgment is the act of one who has executed a
deed in going before some competent officer or court and
declaring it to be his act or deed. It involves an extra step
undertaken whereby the signatory actually declares to the
notary public that the same is his or her own free act and
deed.21 The acknowledgment in a notarial will has a twofold purpose: (1) to safeguard the testator's wishes long
after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be done.
A cursory examination of the acknowledgment of the will
in question shows that this particular requirement was
neither strictly nor substantially complied with. For one,
there was the conspicuous absence of a notation of the
residence certificates of the notarial witnesses Noynay
and Grajo in the acknowledgment. Similarly, the notation
of the testator's old residence certificate in the same
acknowledgment was a clear breach of the law. These
omissions by respondent invalidated the will.
As the acknowledging officer of the contested will,
respondent was required to faithfully observe the
formalities of a will and those of notarization. As we held
in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties
of notaries public. They are required to certify that the
party to every document acknowledged before him had
presented the proper residence certificate (or exemption
from the residence tax); and to enter its number, place of
issue and date as part of such certification.
These formalities are mandatory and cannot be
disregarded, considering the degree of importance and
evidentiary weight attached to notarized documents. 23 A
notary public, especially a lawyer,24 is bound to strictly
observe these elementary requirements.
The Notarial Law then in force required the exhibition of
the residence certificate upon notarization of a document
or instrument:

Section 251. Requirement as to notation of payment of

[cedula] residence tax. - Every contract, deed, or other
document acknowledged before a notary public shall have
certified thereon that the parties thereto have presented
their proper [cedula] residence certificate or are exempt
from the [cedula] residence tax, and there shall be
entered by the notary public as a part of such certificate
the number, place of issue, and date of each [cedula]
residence certificate as aforesaid.25
The importance of such act was further reiterated by
Section 6 of the Residence Tax Act26 which stated:
When a person liable to the taxes prescribed in this Act
acknowledges any document before a notary public xxx it
shall be the duty of such person xxx with whom such
transaction is had or business done, to require the
exhibition of the residence certificate showing payment of
the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to
establish the true and correct identity of the person to
whom it is issued, as well as the payment of residence
taxes for the current year. By having allowed decedent to
exhibit an expired residence certificate, respondent failed
to comply with the requirements of both the old Notarial
Law and the Residence Tax Act. As much could be said of
his failure to demand the exhibition of the residence
certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal
obligation to furnish a copy of the notarized will to the
archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witness. The notary public
shall not be required to retain a copy of the will, or
file another with the office of the Clerk of
Court. (emphasis supplied)
Respondent's failure, inadvertent or not, to file in the
archives division a copy of the notarized will was therefore
not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having
failed to make the necessary entries pertaining to the will
in his notarial register. The old Notarial Law required the
entry of the following matters in the notarial register, in
chronological order:
1. nature of each instrument executed, sworn to, or
acknowledged before him;
2. person executing, swearing to, or acknowledging the
instrument;
3. witnesses, if any, to the signature;

29

4. date of execution, oath, or acknowledgment of the

instrument;

(b) The failure of the notary to make the proper entry or

entries in his notarial register touching his notarial acts in
the manner required by law.

5. fees collected by him for his services as notary;

xxx

xxx

xxx

6. give each entry a consecutive number; andcralawlibrary

7. if the instrument is a contract, a brief description of the
substance of the instrument.27
In an effort to prove that he had complied with the
abovementioned rule, respondent contended that he had
crossed out a prior entry and entered instead the will of
the decedent. As proof, he presented a photocopy of his
notarial register. To reinforce his claim, he presented a
photocopy of a certification28 stating that the archives
division had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not
admissible unless it is shown that the original is
unavailable. The proponent must first prove the existence
and cause of the unavailability of the original, 29 otherwise,
the evidence presented will not be admitted. Thus, the
photocopy of respondent's notarial register was not
admissible as evidence of the entry of the execution of the
will because it failed to comply with the requirements for
the admissibility of secondary evidence.
In the same vein, respondent's attempt to controvert the
certification dated September 21, 199930must fail. Not
only did he present a mere photocopy of the certification
dated March 15, 2000;31 its contents did not squarely
prove the fact of entry of the contested will in his notarial
register.
Notaries public must observe with utmost care32 and
utmost fidelity the basic requirements in the performance
of their duties, otherwise, the confidence of the public in
the integrity of notarized deeds will be undermined. 33
Defects in the observance of the solemnities prescribed by
law render the entire will invalid. This carelessness cannot
be taken lightly in view of the importance and delicate
nature of a will, considering that the testator and the
witnesses, as in this case, are no longer alive to identify
the instrument and to confirm its contents.34 Accordingly,
respondent must be held accountable for his acts. The
validity of the will was seriously compromised as a
consequence of his breach of duty.35
In this connection, Section 249 of the old Notarial Law
provided:
Grounds for revocation of commission. - The following
derelictions of duty on the part of a notary public shall, in
the discretion of the proper judge of first instance, be
sufficient ground for the revocation of his commission:
xxx

xxx

xxx

(f) The failure of the notary to make the proper notation

regarding cedula certificates.36
These gross violations of the law also made respondent
liable for violation of his oath as a lawyer and constituted
transgressions of Section 20 (a), Rule 138 of the Rules of
Court37 and Canon 138 and Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain
allegiance to the Republic of the Philippines, uphold the
Constitution and obey the laws of the land.40 For a lawyer
is the servant of the law and belongs to a profession to
which society has entrusted the administration of law and
the dispensation of justice.41
While the duty to uphold the Constitution and obey the
law is an obligation imposed on every citizen, a lawyer
assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law,
a lawyer should moreover make himself an example for
others to emulate.42Being a lawyer, he is supposed to be a
model in the community in so far as respect for the law is
concerned.43
The practice of law is a privilege burdened with
conditions.44 A breach of these conditions justifies
disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or
acknowledgment that he has engaged in professional
misconduct.45 These sanctions meted out to errant lawyers
include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary
sanction.46 We have held in a number of cases that the
power to disbar must be exercised with great
caution47 and should not be decreed if any punishment
less severe - such as reprimand, suspension, or fine - will
accomplish the end desired.48The rule then is that
disbarment is meted out only in clear cases of misconduct
that seriously affect the standing and character of the
lawyer as an officer of the court.49
Respondent, as notary public, evidently failed in the
performance of the elementary duties of his office.
Contrary to his claims that he "exercised his duties as
Notary Public with due care and with due regard to the
provision of existing law and had complied with the
elementary formalities in the performance of his duties
xxx," we find that he acted very irresponsibly in notarizing
the will in question. Such recklessness warrants the less
severe punishment of suspension from the practice of law.
It is, as well, a sufficient basis for the revocation of his
commission50 and his perpetual disqualification to be
commissioned as a notary public.51

30

WHEREFORE, respondent Atty. Regino B. Tambago is

hereby found guilty of professional misconduct. He
violated (1) the Lawyer's Oath; (2) Rule 138 of the Rules of
Court; (3) Canon 1 and Rule 1.01 of the Code of
Professional Responsibility; (4) Art. 806 of the Civil Code
and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the
practice of law for one year and his notarial
commission REVOKED.Because he has not lived up to the
trustworthiness expected of him as a notary public and as
an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as
a notary public.
Let copies of this Resolution be furnished to all the courts
of the land, the Integrated Bar of the Philippines and the
Office of the Bar Confidant, as well as made part of the
personal records of respondent.
SO ORDERED.

ORTEGA V. VALMONTE, 478 SCRA 247

[G.R. NO. 157451 December 16, 2005]
LETICIA VALMONTE ORTEGA, Petitioner, v. JOSEFINA
C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who
oppose it rests the burden of showing why it should not be
allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the
Court cannot attribute any reversible error on the part of
the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review under Rule 45 of
the Rules of Court, seeking to reverse and set aside the
December 12, 2002 Decision2 and the March 7, 2003
Resolution3 of the Court of Appeals (CA) in CA-GR CV No.
44296. The assailed Decision disposed as follows:
1

"WHEREFORE, the appeal is GRANTED, and the Decision

appealed from is REVERSED and SET ASIDE. In its place
judgment is rendered approving and allowing probate to
the said last will and testament of Placido Valmonte and
ordering the issuance of letters testamentary to the
petitioner Josefina Valmonte. Let this case be remanded to
the court a quo for further and concomitant proceedings." 4

The assailed Resolution denied petitioner's Motion for

Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the
CA, as follows:
"x x x: Like so many others before him, Placido toiled and
lived for a long time in the United States until he finally
reached retirement. In 1980, Placido finally came home to
stay in the Philippines, and he lived in the house and lot
located at #9200 Catmon St., San Antonio Village, Makati,
which he owned in common with his sister Ciriaca
Valmonte and titled in their names in TCT 123468. Two
years after his arrival from the United States and at the
age of 80 he wed Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto Laguio, Jr. on
February 5, 1982. But in a little more than two years of
wedded bliss, Placido died on October 8, 1984 of a cause
written down as COR PULMONALE.
"Placido executed a notarial last will and testament written
in English and consisting of two (2) pages, and dated June
15, 1983 but acknowledged only on August 9, 1983. The
first page contains the entire testamentary dispositions
and a part of the attestation clause, and was signed at the
end or bottom of that page by the testator and on the left
hand margin by the three instrumental witnesses. The
second page contains the continuation of the attestation
clause and the acknowledgment, and was signed by the
witnesses at the end of the attestation clause and again
on the left hand margin. It provides in the body that:
'LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN
THE NAME OF THE LORD AMEN:
'I, PLACIDO VALMONTE, of legal age, married to Josefina
Cabansag Valmonte, and a resident of 9200 Catmon
Street, Makati, Metro Manila, 83 years of age and being of
sound and disposing mind and memory, do hereby declare
this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery,
under the auspices of the Catholic Church in accordance
with the rites and said Church and that a suitable
monument to be erected and provided my by executrix
(wife) to perpetuate my memory in the minds of my family
and friends;
2. I give, devise and bequeath unto my loving wife,
JOSEFINA C. VALMONTE, one half (1/2) portion of the
follow-described properties, which belongs to me as [coowner]:
A. Lot 4-A, Block 13 described on plan Psd-28575, LRC,
(GLRO), situated in Makati, Metro Manila, described and
covered by TCT No. 123468 of the Register of Deeds of
Pasig, Metro-Manila registered jointly as co-owners with

31

my deceased sister (Ciriaca Valmonte), having share and

share alike;
b. 2-storey building standing on the above-described
property, made of strong and mixed materials used as my
residence and my wife and located at No. 9200 Catmon
Street, Makati, Metro Manila also covered by Tax
Declaration No. A-025-00482, Makati, Metro-Manila, jointly
in the name of my deceased sister, Ciriaca Valmonte and
myself as co-owners, share and share alike or equal coowners thereof;
3. All the rest, residue and remainder of my real and
personal properties, including my savings account bank
book in USA which is in the possession of my nephew, and
all others whatsoever and wherever found, I give, devise
and bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole
executrix of my last will and testament, and it is my will
that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this
15th day of June 1983 in Quezon City, Philippines.'
"The allowance to probate of this will was opposed by
Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator,
especially those found in the USA;
2. Petitioner failed to state the names, ages, and
residences of the heirs of the testator; or to give them
proper notice pursuant to law;
3. Will was not executed and attested as required by law
and legal solemnities and formalities were not complied
with;
4. Testator was mentally incapable to make a will at the
time of the alleged execution he being in an advance sate
of senility;
5. Will was executed under duress, or the influence of fear
or threats;
6. Will was procured by undue and improper influence and
pressure on the part of the petitioner and/or her agents
and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick,
and he did not intend that the instrument should be his
will at the time of affixing his signature thereto;'
and she also opposed the appointment as Executrix of
Josefina alleging her want of understanding and integrity.

prepared and notarized the will, and the instrumental

witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez
and Josie Collado. For the opposition, the oppositor Leticia
and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator
they lived in her parents house at Salingcob, Bacnotan, La
Union but they came to Manila every month to get his
$366.00 monthly pension and stayed at the said Makati
residence. There were times though when to shave off on
expenses, the testator would travel alone. And it was in
one of his travels by his lonesome self when the notarial
will was made. The will was witnessed by the spouses
Eugenio and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said she had no
knowledge of the existence of the last will and testament
of her husband, but just serendipitously found it in his
attache case after his death. It was only then that she
learned that the testator bequeathed to her his properties
and she was named the executrix in the said will. To her
estimate, the value of property both real and personal left
by the testator is worth more or less P100,000.00. Josefina
declared too that the testator never suffered mental
infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home
cooked and cleaned the kitchen and sometimes if she
could not accompany him, even traveled to Manila alone
to claim his monthly pension. Josefina also asserts that her
husband was in good health and that he was hospitalized
only because of a cold but which eventually resulted in his
death.
"Notary Public Floro Sarmiento, the notary public who
notarized the testator's will, testified that it was in the first
week of June 1983 when the testator together with the
three witnesses of the will went to his house cum law
office and requested him to prepare his last will and
testament. After the testator instructed him on the terms
and dispositions he wanted on the will, the notary public
told them to come back on June 15, 1983 to give him time
to prepare it. After he had prepared the will the notary
public kept it safely hidden and locked in his drawer. The
testator and his witnesses returned on the appointed date
but the notary public was out of town so they were
instructed by his wife to come back on August 9, 1983,
and which they did. Before the testator and his witnesses
signed the prepared will, the notary public explained to
them each and every term thereof in Ilocano, a dialect
which the testator spoke and understood. He likewise
explained that though it appears that the will was signed
by the testator and his witnesses on June 15, 1983, the
day when it should have been executed had he not gone
out of town, the formal execution was actually on August
9, 1983. He reasoned that he no longer changed the
typewritten date of June 15, 1983 because he did not like
the document to appear dirty. The notary public also
testified that to his observation the testator was physically
and mentally capable at the time he affixed his signature
on the will.

"At the hearing, the petitioner Josefina testified and called

as witnesses the notary public Atty. Floro Sarmiento who

32

"The attesting witnesses to the will corroborated the

testimony of the notary public, and testified that the
testator went alone to the house of spouses Eugenio and
Feliza Gomez at GSIS Village, Quezon City and requested
them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving
his instructions to Atty. Floro Sarmiento, they were told to
return on June 15, 1983; that they returned on June 15,
1983 for the execution of the will but were asked to come
back instead on August 9, 1983 because of the absence of
the notary public; that the testator executed the will in
question in their presence while he was of sound and
disposing mind and that he was strong and in good health;
that the contents of the will was explained by the notary
public in the Ilocano and Tagalog dialect and that all of
them as witnesses attested and signed the will in the
presence of the testator and of each other. And that
during the execution, the testator's wife, Josefina was not
with them.
"The oppositor Leticia declared that Josefina should not
inherit alone because aside from her there are other
children from the siblings of Placido who are just as
entitled to inherit from him. She attacked the mental
capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83
years old and was no longer of sound mind. She knew
whereof she spoke because in 1983 Placido lived in the
Makati residence and asked Leticia's family to live with
him and they took care of him. During that time, the
testator's physical and mental condition showed
deterioration, aberrations and senility. This was
corroborated by her daughter Mary Jane Ortega for whom
Placido took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held
that [t]he evidence adduced, reduces the opposition to
two grounds, namely:
1. Non-compliance with the legal solemnities and
formalities in the execution and attestation of the will;
andcralawlibrary
2. Mental incapacity of the testator at the time of the
execution of the will as he was then in an advanced state
of senility
"It then found these grounds extant and proven, and
accordingly disallowed probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the
will of Placido Valmonte to probate. The CA upheld the
credibility of the notary public and the subscribing
witnesses who had acknowledged the due execution of the
will. Moreover, it held that the testator had testamentary
capacity at the time of the execution of the will. It added
that his "sexual exhibitionism and unhygienic, crude and

impolite ways"6 did not make him a person of unsound

mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are
entitled to great respect.
"II.
Whether or not the signature of Placido Valmonte in the
subject will was procured by fraud or trickery, and that
Placido Valmonte never intended that the instrument
should be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary
capacity at the time he allegedly executed the subject
will."8
In short, petitioner assails the CA's allowance of the
probate of the will of Placido Valmonte.
This Court's Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be
raised in a Petition for Review under Section 1 of Rule 45
of the Rules of Court. As an exception, however, the
evidence presented during the trial may be examined and
the factual matters resolved by this Court when, as in the
instant case, the findings of fact of the appellate court
differ from those of the trial court.9
The fact that public policy favors the probate of a will does
not necessarily mean that every will presented for probate
should be allowed. The law lays down the procedures and
requisites that must be satisfied for the probate of a
will.10 Verily, Article 839 of the Civil Code states the
instances when a will may be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with;

33

(2) If the testator was insane, or otherwise mentally

incapable of making a will, at the time of its execution;

the self-serving allegations of petitioner, no evidence of

fraud was ever presented.

(3) If it was executed through force or under duress, or the

influence of fear, or threats;

It is a settled doctrine that the omission of some relatives

does not affect the due execution of a will.16 That the
testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who
was more than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and her family,
who were the ones who had taken "the cudgels of taking
care of [the testator] in his twilight years." 17

(4) If it was procured by undue and improper pressure and

influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
affixing his signature thereto."
In the present case, petitioner assails the validity of
Placido Valmonte's will by imputing fraud in its execution
and challenging the testator's state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the
formalities in the execution of the will, but maintains that
the circumstances surrounding it are indicative of the
existence of fraud. Particularly, she alleges that
respondent, who is the testator's wife and sole beneficiary,
conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is
allegedly reflected in the varying dates of the execution
and the attestation of the will.
Petitioner contends that it was "highly dubious for a
woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] FilAmerican pensionado,"11 thus casting doubt on the
intention of respondent in seeking the probate of the will.
Moreover, it supposedly "defies human reason, logic and
common experience"12for an old man with a severe
psychological condition to have willingly signed a last will
and testament.
We are not convinced. Fraud "is a trick, secret device, false
statement, or pretense, by which the subject of it is
cheated. It may be of such character that the testator is
misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some
extrinsic fact, in consequence of the deception regarding
which the testator is led to make a certain will which, but
for the fraud, he would not have made."13

Moreover, as correctly ruled by the appellate court, the

conflict between the dates appearing on the will does not
invalidate the document, "because the law does not even
require that a [notarial] will x x x be executed and
acknowledged on the same occasion."18 More important,
the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it
in the presence of the testator and of one
another.19 Furthermore, the testator and the witnesses
must acknowledge the will before a notary public. 20 In any
event, we agree with the CA that "the variance in the
dates of the will as to its supposed execution and
attestation was satisfactorily and persuasively explained
by the notary public and the instrumental witnesses." 21
The pertinent transcript of stenographic notes taken on
June 11, 1985, November 25, 1985, October 13, 1986, and
October 21, 1987 - - as quoted by the CA - - are
reproduced respectively as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date
June 15 when the testator and his witnesses were
supposed to be in your office?chanroblesvirtualawlibrary
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses
come to your house?chanroblesvirtualawlibrary
A They did as of agreement but unfortunately, I was out of
town.
xxx
Q The document has been acknowledged on August 9,
1983 as per acknowledgement appearing therein. Was this
the actual date when the document was acknowledged?
chanroblesvirtualawlibrary
A Yes sir.

We stress that the party challenging the will bears the

burden of proving the existence of fraud at the time of its
execution.14 The burden to show otherwise shifts to the
proponent of the will only upon a showing of credible
evidence of fraud.15 Unfortunately in this case, other than

Q What about the date when the testator and the three
witnesses affixed their respective signature on the first
and second pages of exhibit C?chanroblesvirtualawlibrary

34

A On that particular date when it was acknowledged,

August 9, 1983.

A The wife of Atty. Sarmiento told us that we will be back

on August 9, 1983.

Q Why did you not make the necessary correction on the

date appearing on the body of the document as well as
the attestation clause?chanroblesvirtualawlibrary

Q And on August 9, 1983 did you go back to the house of

Atty. Sarmiento?chanroblesvirtualawlibrary
A Yes, Sir.

A Because I do not like anymore to make some alterations

so I put it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated
June 15, 1983, whereas in the acknowledgement it is
dated August 9, 1983, will you look at this document and
tell us this discrepancy in the date?
chanroblesvirtualawlibrary

Q For what purpose?chanroblesvirtualawlibrary

A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
chanroblesvirtualawlibrary
A Yes sir. (tsn, October 21, 1987, pp. 4-5)" 22

Q When you did not find Atty. Sarmiento on June 15, 1983,
did you again go back?chanroblesvirtualawlibrary

Notably, petitioner failed to substantiate her claim of a

"grand conspiracy" in the commission of a fraud. There
was no showing that the witnesses of the proponent stood
to receive any benefit from the allowance of the will. The
testimonies of the three subscribing witnesses and the
notary are credible evidence of its due execution.23 Their
testimony favoring it and the finding that it was executed
in accordance with the formalities required by law should
be affirmed, absent any showing of ill motives. 24

A We returned on the 9th of August and there we signed.

Capacity to Make a Will

Q This August 9, 1983 where you said it is there where you

signed, who were your companions?
chanroblesvirtualawlibrary

In determining the capacity of the testator to make a will,

the Civil Code gives the following guidelines:

A We went to Atty. Sarmiento together with Placido

Valmonte and the two witnesses; that was first week of
June and Atty. Sarmiento told us to return on the 15th of
June but when we returned, Atty. Sarmiento was not there.

A The two witnesses, me and Placido Valmonte. (tsn,

November 25, 1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro
Sarmiento, three times?
xxx
A The reason why we went there three times is that, the
first week of June was out first time. We went there to talk
to Atty. Sarmiento and Placido Valmonte about the last will
and testament. After that what they have talked what will
be placed in the testament, what Atty. Sarmiento said was
that he will go back on the 15th of June. When we returned
on June 15, Atty. Sarmiento was not there so we were not
able to sign it, the will. That is why, for the third time we
went there on August 9 and that was the time we affixed
our signature. (tsn, October 13, 1986, pp. 4-6)

"Article 798. In order to make a will it is essential that the

testator be of sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that
the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken, unimpaired,
or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.
"Article 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.

Josie Collado:

"The burden of proof that the testator was not of sound

mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it
during a lucid interval."

Q When you did not find Atty. Sarmiento in his house on

June 15, 1983, what transpired?chanroblesvirtualawlibrary

According to Article 799, the three things that the testator

must have the ability to know to be considered of sound

35

mind are as follows: (1) the nature of the estate to be

disposed of, (2) the proper objects of the testator's
bounty, and (3) the character of the testamentary act.
Applying this test to the present case, we find that the
appellate court was correct in holding that Placido had
testamentary capacity at the time of the execution of his
will.
It must be noted that despite his advanced age, he was
still able to identify accurately the kinds of property he
owned, the extent of his shares in them and even their
locations. As regards the proper objects of his bounty, it
was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution,
intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind
is Alsua-Betts v. CA,25 which held thus:
"Between the highest degree of soundness of mind and
memory which unquestionably carries with it full
testamentary capacity, and that degrees of mental
aberration generally known as insanity or idiocy, there are
numberless degrees of mental capacity or incapacity and
while on one hand it has been held that mere weakness of
mind, or partial imbecility from disease of body, or from
age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will,
provided he has understanding and memory sufficient to
enable him to know what he is about to do and how or to
whom he is disposing of his property. To constitute a sound
and disposing mind, it is not necessary that the mind be
unbroken or unimpaired or unshattered by disease or
otherwise. It has been held that testamentary incapacity
does not necessarily require that a person shall actually be
insane or of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed
Decision and Resolution of the Court of Appeals
are AFFIRMED. Costs against petitioner.
SO ORDERED.

GUERRERO V. BIKIS, 521 SCRA 394

G.R. No. 174144. April 17, 2007.]
BELLA A. GUERRERO, petitioner,
vs . RESURRECCION A. BIHIS, respondent
D E C I S I O NCORONA
: The Scriptures tell the story of the brothers Jacob and
Esau, siblings who fought bitterly over the inheritance of
their father Isaac's estate. Jurisprudence is also replete
with cases involving acrimonious conflicts between

brothers and sisters over successional rights. This case is

no exception. On February 19, 1994, Felisa Tamio de
Buenaventura, mother of petitioner Bella A.Guerrero and
respondent Resurreccion A. Bihis, died at the Metropolitan
Hospital in Tondo, Manila. On May 24, 1994, petitioner
filed a petition for the probate of the last will and
testament of the decedent in Branch 95 of the Regional
Trial Court of Quezon City where the case was docketed as
Sp. Proc. No. Q-94-20661. The petition alleged the
following: petitioner was named as executrix in the
decedent's will and she was legally qualified to act as
such; the decedent was a citizen of the Philippines at the
time of her death; at the time of the execution of the will,
the testatrix was 79 years old, of sound and disposing
mind, not acting under duress, fraud or undue influence
and was capacitated to dispose of her estate by will.
Respondent opposed her elder sister's petition on the
following grounds: the will was not executed and attested
as required by law; its attestation clause and
acknowledgment did not comply with the requirements of
the law; the signature of the testatrix was procured by
fraud and petitioner and her children procured the will
through undue and improper pressure and influence. In an
order dated November 9, 1994, the trial court appointed
petitioner as special administratrix of the decedent's
estate. Respondent opposed petitioner's appointment but
subsequently withdrew her opposition. Petitioner took her
oath as temporary special administratrix and letters of
special administration were issued to her. On January 17,
2000, after petitioner presented her evidence, respondent
filed a demurrer thereto alleging that petitioner's evidence
failed to establish that the decedent's will complied with
Articles 804 and 805 of the Civil Code.
In a resolution dated July 6, 2001, the trial court denied
the probate of the will ruling that Article 806 of the Civil
Code was not complied with because the will was
"acknowledged" by the testatrix and the witnesses at the
testatrix's residence atN o. 40 Kanlaon Street, Quezon City
before Atty. Macario O. Directo who was a commissioned
notary public for and in Caloocan City. The dispositive
portion of there solution read:
WHEREFORE, in view of the foregoing, the Court finds, and
so declares that it cannot admit the last will and
testament of the late Felisa Tamio de Buenaventura to
probate for the reasons hereinabove discussed and also in
accordance with Article 839 [of the Civil Code] which
provides that if the formalities required by law have not
been complied with, the will shall bed is allowed. In view
thereof, the Court shall henceforth proceed with intestate
succession in regard to the estate of the deceased Felisa
Tamio de Buenaventura in accordance with Article 960 of
the [Civil Code], to wit: "Art.960. Legal or intestate
succession takes place: (1) If a person dies without a will,
or with a void will, or one which has subsequently lost its
validity, . . . ."SO ORDERED,
Petitioner elevated the case to the Court of Appeals but
the appellate court dismissed the appeal and affirmed the
resolution of the trial court.

36

Thus, this petition.

Petitioner admits that the will was acknowledged by the
testatrix and the witnesses at the testatrix's residence in
Quezon City before Atty. Directo and that, at that time,
Atty. Directo was a commissioned notary public for and in
Caloocan City. She, however, asserts that the fact that the
notary public was acting outside his territorial jurisdiction
did not affect the validity of the notarial will. Did the will
"acknowledged" by the testatrix and the instrumental
witnesses before a notary public acting outside the place
of his commission satisfy the requirement under Article
806 of the Civil Code? It did not. Article 806 of the Civil
Code provides:
ART. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
One of the formalities required by law in connection with
the execution of a notarial will is that it must be
acknowledged before a notary public by the testator and
the witnesses.
This formal requirement is one of the indispensable
requisites for the validity of a will.
In other words, a notarial will that is not acknowledged
before a notary public by the testator and the
instrumental witnesses is void and cannot be accepted for
probate.
An acknowledgment is the act of one who has executed a
deed in going before some competent officer and
declaring it to be his act or deed.
In the case of a notarial will, that competent officer is the
notary public. The acknowledgment of a notarial will
coerces the testator and the instrumental witnesses to
declare before an officer of the law, the notary public, that
they executed and subscribed to the will as their own free
act or deed.
Such declaration is under oath and under pain of perjury,
thus paving the way for the criminal prosecution of
persons who participate in the execution of spurious wills,
or those executed without the free consent of the testator.
It also provides a further degree of assurance that the
testator is of a certain mindset in making the
testamentary dispositions to the persons instituted as
heirs or designated as devisees or legatees in the will.
Acknowledgment can only be made before a competent
officer, that is, a lawyer duly commissioned as a notary
public. In this connection, the relevant provisions of the
Notarial Law provide:
SECTION 237.
Form of commission for notary public

. The appointment of a notary public shall be in writing,

signed by the judge, and substantially in the following
form: GOVERNMENT OF THEREPUBLIC OF THE
PHILIPPINESPROVINCE OF ____________ This is to certify
that ______, of the municipality of ______ in said province,
was on the ____ day of ______, anno Domini nineteen
hundred and _____,appointed by me a notary public, within
and for the said province, for the term ending on the first
day of January, anno Domini nineteen hundred and _____.
__________________ Judge of the Court of First Instance of
said Province xxx xxx xxx SECTION 240.
Territorial jurisdiction
. The jurisdiction of a notary public in a province shall
be co-extensive with the province. The jurisdiction of
notary public in the City of Manila shall be co-extensive
with said city.
No notary shall possess authority to do any notarial act
beyond the limits of his jurisdiction
. (Emphases supplied)
A notary public's commission is the grant of authority in
his favor to perform notarial acts.
It is issued "within and for" a particular territorial
jurisdiction and the notary public's authority is coextensive with it. In other words, a notary public is
authorized to perform notarial acts, including the taking of
acknowledgments, within that territorial jurisdiction only.
Outside the place of his commission, he is bereft of power
to perform any notarial act; he is not a notary public.
Any notarial act outside the limits of his jurisdiction has
no force and effect. As this Courtcategorically pronounced
in Tecson v. Tecson : An acknowledgment taken outside
the territorial limits of the officer's jurisdiction is void as if
the person taking it were wholly without official character.
(emphasis supplied)
Since Atty. Directo was not a commissioned notary public
for and in Quezon City, he lacked the authority to take the
acknowledgment of the testatrix and the instrumental
witnesses. In the same vein, the testatrix and her
witnesses could not have validly acknowledged the will
before him. Thus, Felisa Tamio de Buenaventura's last will
and testament was, in effect, not acknowledged as
required by law. Moreover, Article 5 of the Civil Code
provides:
ART. 5. Acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the law
itself authorizes their validity.
The violation of a mandatory or a prohibitory statute
renders the act illegal and void unless the law itself
declares its continuing validity. Here, mandatory and
prohibitory statutes were transgressed in the execution of
the alleged acknowledgment." The compulsory language
of Article 806 of the Civil Code was not complied with and

37

the interdiction of Article 240 of the Notarial Law was

breached. Ineluctably, the acts of the testatrix, her
witnesses and Atty. Direct were all completely void. The
Court cannot turn a blind eye to Atty. Directors
participation in the preparation, execution and unlawful
"acknowledgment" of Felisa Tamio de Buenaventura's will.
Had he exercised his notarial commission properly, the
intent of the law to effectuate the decedent's final
statements as expressed in her will would not have come
to naught.
Hence, Atty. Directo should show cause why he should not
be administratively sanctioned as a member of the bar
and as an officer of the court.
WHEREFORE, the petition is hereby DENIED. Costs against
petitioner. Let a copy of this decision be furnished the
Commission on Bar Discipline of the Integrated Bar of the
Philippines for investigation, report and recommendation
on the possible misconduct of Atty. Macario O. Directo.SO
ORDERED.

ALVARADO V. GAVIOLA, 226 SCRA 348

G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and
Testament of the Deceased Brigido Alvarado, CESAR
ALVARADO, Petitioner, vs. HON. RAMON G. GAVIOLA,
JR., Presiding Justice, HON. MA. ROSARIO QUETULIO
LOSA and HON. LEONOR INES LUCIANO, Associate
Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA.
RINO, Respondents.
Vicente R. Redor for petitioner...

the will himself. Instead, private respondent, as the lawyer

who drafted the eight-paged document, read the same
aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter
four followed the reading with their own respective copies
previously furnished them...
Meanwhile, Brigido's holographic will was subsequently
admitted to probate on 9 December 1977. On the 29th
day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But
the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator
did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental
witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own
copies...
A petition for the probate of the notarial will and codicil
was filed upon the testator's death on 3 January 1979 by
private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan,
Laguna. 5 Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was
not executed and attested as required by law; that the
testator was insane or otherwise mentally incapacitated to
make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or
influence of fear and threats; that it was procured by
undue and improper pressure and influence on the part of
the beneficiary who stands to get the lion's share of the
testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick...

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April
1986 1 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals, which
affirmed the Order dated 27 June 1983 2 of the Regional
Trial Court of Sta. Cruz, Laguna, admitting to probate the
last will and testament 3 with codicil 4 of the late Brigido
Alvarado...
On 5 November 1977, the 79-year old Brigido Alvarado
executed a notarial will entitled "Huling Habilin" wherein
he disinherited an illegitimate son (petitioner) and
expressly revoked a previously executed holographic will
at the time awaiting probate before Branch 4 of the
Regional Trial Court of sta. Cruz, Laguna...
As testified to by the three instrumental witnesses, the
notary public and by private respondent who were present
at the execution, the testator did not read the final draft of

When the oppositor (petitioner) failed to substantiate the

grounds relied upon in the Opposition, a Probate Order
was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal
was that the deceased was blind within the meaning of
the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and
codicil should have been denied...
On 11 April 1986, the Court of Appeals rendered the
decision under review with the following findings: that
Brigido Alvarado was not blind at the time his last will and
codicil were executed; that assuming his blindness, the
reading requirement of Art. 808 was substantially
complied with when both documents were read aloud to
the testator with each of the three instrumental witnesses
and the notary public following the reading with their
respective copies of the instruments. The appellate court
then concluded that although Art. 808 was not followed to

38

the letter, there was substantial compliance since its

purpose of making known to the testator the contents of
the drafted will was served...

The following pronouncement in Garcia

vs. Vasquez 13 provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit:

The issues now before us can be stated thus: Was Brigido

Alvarado blind for purpose of Art, 808 at the time his
"Huling Habilin" and its codicil were executed? If so, was
the double-reading requirement of said article complied
with?..

The rationale behind the requirement of reading the will to

the testator if he isblind or incapable of reading the will
himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if
they are not in accordance with his wishes . . .

Regarding the first issue, there is no dispute on the

following facts: Brigido Alvarado was not totally blind at
the time the will and codicil were executed. However, his
vision on both eyes was only of "counting fingers at three
(3) feet" by reason of the glaucoma which he had been
suffering from for several years and even prior to his first
consultation with an eye specialist on
14 December 1977...

Clear from the foregoing is that Art. 808 applies not only
to blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts
of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred"
vision, there can be no other course for us but to conclude
that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were
read to him, he had no way of ascertaining whether or not
the lawyer who drafted the will and codicil did so
confortably with his instructions. Hence, to consider his
will as validly executed and entitled to probate, it is
essential that we ascertain whether Art. 808 had been
complied with...

The point of dispute is whether the foregoing

circumstances would qualify Brigido as a "blind" testator
under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally
blind when the will and codicil were executed, he can be
so considered within the scope of the term as it is used in
Art. 808. To support his stand, petitioner presented before
the trial court a medical certificate issued by Dr. Salvador
R. Salceda, Director of the Institute of Opthalmology
(Philippine Eye Research Institute), 6 the contents of which
were interpreted in layman's terms by Dr. Ruperto Roasa,
whose expertise was admitted by private respondent. 7 Dr.
Roasa explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either
printed or handwritten matters as of 14 December 1977,
the day of his first consultation. 8..
On the other hand, the Court of Appeals, contrary to the
medical testimony, held that the testator could still read
on the day the will and the codicil were executed but
chose not to do so because of "poor eyesight." 9 Since the
testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be complied
with...
We agree with petitioner in this respect...
Regardless of respondent's staunch contention that the
testator was still capable of reading at the time his will
and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so
because of his "poor," 10"defective," 11 or "blurred" 12 vision
making it necessary for private respondent to do the
actual reading for him...

Article 808 requires that in case of testators like Brigido

Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to
make known to the incapacitated testator the contents of
the document before signing and to give him an
opportunity to object if anything is contrary to his
instructions...
That Art. 808 was not followed strictly is beyond cavil.
Instead of the notary public and an instrumental witness,
it was the lawyer (private respondent) who drafted the
eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not
twice as Art. 808 requires...
Private respondent however insists that there was
substantial compliance and that the single reading suffices
for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary
public nor an instrumental witness read the contents of
the will and codicil to Brigido, probate of the latter's will
and codicil should have been disallowed...
We sustain private respondent's stand and necessarily, the
petition must be denied...
This Court has held in a number of occasions that
substantial compliance is acceptable where the purpose of
the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery

39

but are never intended to be so rigid and inflexible as to

destroy the testamentary privilege. 14..
In the case at bar, private respondent read the testator's
will and codicil aloud in the presence of the testator, his
three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his
instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and
petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with
respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido
Alvarado already acknowledged that the will was drafted
in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing his
conformity to the draft. 15..
Moreover, it was not only Atty. Rino who read the
documents on
5 November and 29 December 1977. The notary public
and the three instrumental witnesses likewise read the will
and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente
(one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in
the affirmative. 16 With four persons following the reading
word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that
what was read to him (those which he affirmed were in
accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially
true when we consider the fact that the three instrumental
witnesses were persons known to the testator, one being
his physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood...
The spirit behind the law was served though the letter was
not. Although there should be strict compliance with the
substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the
testator's will.17..
As a final word to convince petitioner of the propriety of
the trial court's Probate Order and its affirmance by the
Court of Appeals, we quote the following pronouncement
in Abangan v. Abangan, 18 to wit:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws
on the subject should be interpreted in such a way as to

attain these primordial ends. But, on the other hand, also

one must not lose sight of the fact that it is not the object
of the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's will,
must be disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear
and unmistakable terms in his "Huling Habilin" and the
codicil attached thereto. We are unwilling to cast these
aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when
such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will,
had already been accomplished. To reiterate, substantial
compliance suffices where the purpose has been served...
WHEREFORE, the petition is DENIED and the assailed
Decision of respondent Court of Appeals dated 11 April
1986 is AFFIRMED. Considering the length of time that this
case has remained pending, this decision is immediately
executory. Costs against petitioner...
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

ROXAS V. DE JESUS, 134 SCRA 245

G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF
ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS,
SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS,Petitioners, vs. ANDRES R. DE JESUS,
JR., Respondent.
Raul S. Sison Law Office for petitioners...
Rafael Dinglasan, Jr. for heir M. Roxas...
Ledesma, Guytingco Velasco and Associates for Ledesa
and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of
respondent Hon. Jose C. Colayco, Presiding Judge Court of
First Instance of Manila, Branch XXI disallowing the
probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.chanroblesvirtualawlibrary ..

40

The antecedent facts which led to the filing of this petition

are undisputed.chanroblesvirtualawlibrary ..
After the death of spouses Andres G. de Jesus and Bibiana
Roxas de Jesus, Special Proceeding No. 81503 entitled "In
the Matter of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana
Roxas de Jesus.chanroblesvirtualawlibrary ..
On March 26, 1973, petitioner Simeon R. Roxas was
appointed administrator. After Letters of Administration
had been granted to the petitioner, he delivered to the
lower court a document purporting to be the holographic
Will of the deceased Bibiana Roxas de Jesus. On May 26,
1973, respondent Judge Jose Colayco set the hearing of
the probate of the holographic Win on July 21,
1973.chanroblesvirtualawlibrary ..
Petitioner Simeon R. Roxas testified that after his
appointment as administrator, he found a notebook
belonging to the deceased Bibiana R. de Jesus and that on
pages 21, 22, 23 and 24 thereof, a letter-win addressed to
her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was
found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written
by a lawyer. ...chanroblesvirtualawlibrary ..
The testimony of Simeon R. Roxas was corroborated by
the testimonies of Pedro Roxas de Jesus and Manuel Roxas
de Jesus who likewise testified that the letter dated
"FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her
signature. They further testified that their deceased
mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 "
was the date when said Will was executed by their
mother.chanroblesvirtualawlibrary ..
Respondent Luz R. Henson, another compulsory heir filed
an "opposition to probate" assailing the purported
holographic Will of Bibiana R. de Jesus because a it was
not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and
testament at the time of its
execution.chanroblesvirtualawlibrary ..
On August 24, 1973, respondent Judge Jose C. Colayco
issued an order allowing the probate of the holographic
Will which he found to have been duly executed in
accordance with law.chanroblesvirtualawlibrary ..
Respondent Luz Roxas de Jesus filed a motion for
reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was

not dated as required by Article 810 of the Civil Code. She

contends that the law requires that the Will should contain
the day, month and year of its execution and that this
should be strictly complied
with.chanroblesvirtualawlibrary ..
On December 10, 1973, respondent Judge Colayco
reconsidered his earlier order and disallowed the probate
of the holographic Will on the ground that the word
"dated" has generally been held to include the month,
day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required by
the law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 "
appearing on the holographic Will of the deceased Bibiana
Roxas de Jesus is a valid compliance with the Article 810
of the Civil Code which reads:
ART. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not be
witnessed.
The petitioners contend that while Article 685 of the
Spanish Civil Code and Article 688 of the Old Civil Code
require the testator to state in his holographic Win the
"year, month, and day of its execution," the present Civil
Code omitted the phrase Ao mes y dia and simply
requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the
holographic Will should
prevail.chanroblesvirtualawlibrary ..
Respondent Luz Henson on the other hand submits that
the purported holographic Will is void for non-compliance
with Article 810 of the New Civil Code in that the date
must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code
was patterned after Section 1277 of the California Code
and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these
is wanting, the holographic Will is invalid. The respondent
further contends that the petitioner cannot plead liberal
construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the
execution of holographic Wills are strictly construed...
We agree with the petitioner.chanroblesvirtualawlibrary ..
This will not be the first time that this Court departs from a
strict and literal application of the statutory requirements
regarding the due execution of Wills. We should not
overlook the liberal trend of the Civil Code in the manner

41

of execution of Wills, the purpose of which, in case of

doubt is to prevent intestacy The underlying and fundamental objectives permeating
the provisions of the law on wigs in this Project consists in
the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in
expressing his last wishes, but with sufficien safeguards
and restrictions to prevent the commission of fraud and
the exercise of undue and improper pressure and influence
upon the testator.chanroblesvirtualawlibrary ..
This objective is in accord with the modem tendency with
respect to the formalities in the execution of wills. (Report
of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs
of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx..
... The law has a tender regard for the will of the testator
expressed in his last will and testament on the ground that
any disposition made by the testator is better than that
which the law can make. For this reason, intestate
succession is nothing more than a disposition based upon
the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422).
If a Will has been executed in substantial compliance with
the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Win
should be admitted to probate (Rey v. Cartagena 56 Phil.
282). Thus,
xxx xxx xxx..
... More than anything else, the facts and circumstances of
record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have
been executed substantially in accordance with the
requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud,
lean towards its admission to probate, although the
document may suffer from some imperfection of language,
or other non-essential defect. ... (Leynez v. Leynez 68 Phil.
745).
If the testator, in executing his Will, attempts to comply
with all the requisites, although compliance is not literal, it
is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the
form followed by the testator...

The purpose of the solemnities surrounding the execution

of Wills has been expounded by this Court in Abangan v.
Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. ...
In particular, a complete date is required to provide
against such contingencies as that of two competing Wills
executed on the same day, or of a testator becoming
insane on the day on which a Will was executed (Velasco
v. Lopez, 1 Phil. 720). There is no such contingency in this
case.chanroblesvirtualawlibrary ..
We have carefully reviewed the records of this case and
found no evidence of bad faith and fraud in its execution
nor was there any substitution of Wins and Testaments.
There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written,
dated, and signed by the testatrix herself and in a
language known to her. There is also no question as to its
genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz
Henson is that the holographic Will is fatally defective
because the date "FEB./61 " appearing on the holographic
Will is not sufficient compliance with Article 810 of the
Civil Code. This objection is too technical to be
entertained.chanroblesvirtualawlibrary ..
As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution.
However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and
the only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of
substantial compliance.chanroblesvirtualawlibrary ..
WHEREFORE, the instant petition is GRANTED. The order
appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus is
reinstated.chanroblesvirtualawlibrary ..
SO ORDERED.

LABRADOR V. CA, 184 SCRA 170

G.R. No. 58168 December 19, 1989

42

CONCEPCION MAGSAYSAY-LABRADOR, SOLEDAD

MAGSAYSAY-CABRERA, LUISA MAGSAYSAY-CORPUZ,
assisted be her husband, Dr. Jose Corpuz,
FELICIDAD P. MAGSAYSAY, and MERCEDES
MAGSAYSAY-DIAZ, Petitioners, vs. THE COURT OF
APPEALS and ADELAIDA RODRIGUEZ-MAGSAYSAY,
Special Administratrix of the Estate of the late
Genaro F. Magsaysay Respondents...
FERNAN, C.J.:
In this petition for review on certiorari, petitioners seek to
reverse and set aside [1] the decision of the Court of
Appeals dated July l3, 1981, 1 affirming that of the Court of
First Instance of Zambales and Olongapo City which
denied petitioners' motion to intervene in an annulment
suit filed by herein private respondent, and [2] its
resolution dated September 7, 1981, denying their motion
for reconsideration...
Petitioners are raising a purely legal question; whether or
not respondent Court of Appeals correctly denied their
motion for intervention.chanroblesvirtualawlibrary ..
The facts are not
controverted.chanroblesvirtualawlibrary ..
On February 9, 1979, Adelaida Rodriguez-Magsaysay,
widow and special administratix of the estate of the late
Senator Genaro Magsaysay, brought before the then Court
of First Instance of Olongapo an action against Artemio
Panganiban, Subic Land Corporation (SUBIC), Filipinas
Manufacturer's Bank (FILMANBANK) and the Register of
Deeds of Zambales. In her complaint, she alleged that in
1958, she and her husband acquired, thru conjugal funds,
a parcel of land with improvements, known as "Pequena
Island", covered by TCT No. 3258; that after the death of
her husband, she discovered [a] an annotation at the back
of TCT No. 3258 that "the land was acquired by her
husband from his separate capital;" [b] the registration of
a Deed of Assignment dated June 25, 1976 purportedly
executed by the late Senator in favor of SUBIC, as a result
of which TCT No. 3258 was cancelled and TCT No. 22431
issued in the name of SUBIC; and [c] the registration of
Deed of Mortgage dated April 28, 1977 in the amount of P
2,700,000.00 executed by SUBIC in favor of FILMANBANK;
that the foregoing acts were void and done in an attempt
to defraud the conjugal partnership considering that the
land is conjugal, her marital consent to the annotation on
TCT No. 3258 was not obtained, the change made by the
Register of Deeds of the titleholders was effected without
the approval of the Commissioner of Land Registration and
that the late Senator did not execute the purported Deed
of Assignment or his consent thereto, if obtained, was
secured by mistake, violence and intimidation. She further
alleged that the assignment in favor of SUBIC was without
consideration and consequently null and void. She prayed
that the Deed of Assignment and the Deed of Mortgage be
annulled and that the Register of Deeds be ordered to
cancel TCT No. 22431 and to issue a new title in her
favor...

On March 7, 1979, herein petitioners, sisters of the late

senator, filed a motion for intervention on the ground that
on June 20, 1978, their brother conveyed to them one-half
(1/2 ) of his shareholdings in SUBIC or a total of 416,566.6
shares and as assignees of around 41 % of the total
outstanding shares of such stocks of SUBIC, they have a
substantial and legal interest in the subject matter of
litigation and that they have a legal interest in the success
of the suit with respect to
SUBIC.chanroblesvirtualawlibrary ..
On July 26, 1979, the court denied the motion for
intervention, and ruled that petitioners have no legal
interest whatsoever in the matter in litigation and their
being alleged assignees or transferees of certain shares in
SUBIC cannot legally entitle them to intervene because
SUBIC has a personality separate and distinct from its
stockholders.chanroblesvirtualawlibrary ..
On appeal, respondent Court of Appeals found no factual
or legal justification to disturb the findings of the lower
court. The appellate court further stated that whatever
claims the petitioners have against the late Senator or
against SUBIC for that matter can be ventilated in a
separate proceeding, such that with the denial of the
motion for intervention, they are not left without any
remedy or judicial relief under existing law...
Petitioners' motion for reconsideration was denied. Hence,
the instant recourse...
Petitioners anchor their right to intervene on the purported
assignment made by the late Senator of a certain portion
of his shareholdings to them as evidenced by a Deed of
Sale dated June 20, 1978. 2 Such transfer, petitioners
posit, clothes them with an interest, protected by law, in
the matter of litigation...
Invoking the principle enunciated in the case of PNB v.
Phil. Veg. Oil Co., 49 Phil. 857,862 & 853
(1927), 3 petitioners strongly argue that their ownership of
41.66% of the entire outstanding capital stock of SUBIC
entitles them to a significant vote in the corporate affairs;
that they are affected by the action of the widow of their
late brother for it concerns the only tangible asset of the
corporation and that it appears that they are more vitally
interested in the outcome of the case than SUBIC...
Viewed in the light of Section 2, Rule 12 of the Revised
Rules of Court, this Court affirms the respondent court's
holding that petitioners herein have no legal interest in the
subject matter in litigation so as to entitle them to
intervene in the proceedings below. In the case of Batama
Farmers' Cooperative Marketing Association, Inc. v.
Rosal, 4 we held: "As clearly stated in Section 2 of Rule 12
of the Rules of Court, to be permitted to intervene in a
pending action, the party must have a legal interest in the
matter in litigation, or in the success of either of the
parties or an interest against both, or he must be so
situated as to be adversely affected by a distribution or

43

other disposition of the property in the custody of the

court or an officer thereof ."..
To allow intervention, [a] it must be shown that the
movant has legal interest in the matter in litigation, or
otherwise qualified; and [b] consideration must be given
as to whether the adjudication of the rights of the original
parties may be delayed or prejudiced, or whether the
intervenor's rights may be protected in a separate
proceeding or not. Both requirements must concur as the
first is not more important than the second. 5..
The interest which entitles a person to intervene in a suit
between other parties must be in the matter in litigation
and of such direct and immediate character that the
intervenor will either gain or lose by the direct legal
operation and effect of the judgment. Otherwise, if
persons not parties of the action could be allowed to
intervene, proceedings will become unnecessarily
complicated, expensive and interminable. And this is not
the policy of the law. 6 ..
The words "an interest in the subject" mean a direct
interest in the cause of action as pleaded, and which
would put the intervenor in a legal position to litigate a
fact alleged in the complaint, without the establishment of
which plaintiff could not recover. 7..
Here, the interest, if it exists at all, of petitioners-movants
is indirect, contingent, remote, conjectural, consequential
and collateral. At the very least, their interest is purely
inchoate, or in sheer expectancy of a right in the
management of the corporation and to share in the profits
thereof and in the properties and assets thereof on
dissolution, after payment of the corporate debts and
obligations.chanroblesvirtualawlibrary ..
While a share of stock represents a proportionate or
aliquot interest in the property of the corporation, it does
not vest the owner thereof with any legal right or title to
any of the property, his interest in the corporate property
being equitable or beneficial in nature. Shareholders are in
no legal sense the owners of corporate property, which is
owned by the corporation as a distinct legal person. 8..
Petitioners further contend that the availability of other
remedies, as declared by the Court of appeals, is totally
immaterial to the availability of the remedy of
intervention.chanroblesvirtualawlibrary ..
We cannot give credit to such averment. As earlier stated,
that the movant's interest may be protected in a separate
proceeding is a factor to be considered in allowing or
disallowing a motion for intervention. It is significant to
note at this juncture that as per records, there are four
pending cases involving the parties herein, enumerated as
follows: [1] Special Proceedings No. 122122 before the CFI
of Manila, Branch XXII, entitled "Concepcion MagsaysayLabrador, et al. v. Subic Land Corp., et al.", involving the
validity of the transfer by the late Genaro Magsaysay of

one-half of his shareholdings in Subic Land Corporation;

[2] Civil Case No. 2577-0 before the CFI of Zambales,
Branch III, "Adelaida Rodriguez-Magsaysay v. Panganiban,
etc.; Concepcion Labrador, et al. Intervenors", seeking to
annul the purported Deed of Assignment in favor of SUBIC
and its annotation at the back of TCT No. 3258 in the
name of respondent's deceased husband; [3] SEC Case
No. 001770, filed by respondent praying, among other
things that she be declared in her capacity as the
surviving spouse and administratrix of the estate of
Genaro Magsaysay as the sole subscriber and stockholder
of SUBIC. There, petitioners, by motion, sought to
intervene. Their motion to reconsider the denial of their
motion to intervene was granted; [4] SP No. Q-26739
before the CFI of Rizal, Branch IV, petitioners herein filing
a contingent claim pursuant to Section 5, Rule 86, Revised
Rules of Court. 9 Petitioners' interests are no doubt amply
protected in these cases.chanroblesvirtualawlibrary ..
Neither do we lend credence to petitioners' argument that
they are more interested in the outcome of the case than
the corporation-assignee, owing to the fact that the latter
is willing to compromise with widow-respondent and since
a compromise involves the giving of reciprocal
concessions, the only conceivable concession the
corporation may give is a total or partial relinquishment of
the corporate assets. 10 ..
Such claim all the more bolsters the contingent nature of
petitioners' interest in the subject of
litigation.chanroblesvirtualawlibrary ..
The factual findings of the trial court are clear on this
point. The petitioners cannot claim the right to intervene
on the strength of the transfer of shares allegedly
executed by the late Senator. The corporation did not keep
books and records. 11 Perforce, no transfer was ever
recorded, much less effected as to prejudice third parties.
The transfer must be registered in the books of the
corporation to affect third persons. The law on
corporations is explicit. Section 63 of the Corporation Code
provides, thus: "No transfer, however, shall be valid,
except as between the parties, until the transfer is
recorded in the books of the corporation showing the
names of the parties to the transaction, the date of the
transfer, the number of the certificate or certificates and
the number of shares transferred." ..
And even assuming arguendo that there was a valid
transfer, petitioners are nonetheless barred from
intervening inasmuch as their rights can be ventilated and
amply protected in another
proceeding.chanroblesvirtualawlibrary ..
WHEREFORE, the instant petition is hereby DENIED. Costs
against petitioners.chanroblesvirtualawlibrary ..
SO ORDERED.

44

RODELAS V. ARAUZA, 119 SCRA 16

[G.R. No. L-58509. December 7, 1982.]
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA, deceased, MARCELA
RODELAS, Petitioner-Appellant, v. AMPARO
ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
Luciano A. Joson for Petitioner-Appellant.
Cesar C. Paralejo for Oppositor-Appellee.

by the bare testimony of witnesses who have seen and/or

read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate
court." Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because
then the authenticity of the handwriting of the deceased
can be determined by the probate court.

SYNOPSIS
DECISION
The probate court ordered the dismissal of appellants
petition for the allowance of the holographic will of
deceased Ricardo B. Bonilla on the ground that the alleged
photostatic copy of the will which was presented for
probate, cannot stand in lieu of the lost original, for the
law regards the document itself as the material proof of
the authenticity of the said will, citing the case of Gan v.
Yap, 104 Phil. 509, 522. On appeal, the only question is
whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower courts
order of dismissal, held that a photostatic or xerox copy of
a lost or destroyed holographic will may be admitted
because the authenticity of the handwriting of the
deceased can he determined by the probate court, as
comparison can be made with the standard writings of the
testator.
Assailed order of dismissal, set aside.

SYLLABUS

1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS;

PROBATE THEREOF; DEFINITION. Pursuant to Article 811
of the Civil Code, probate of holographic wills is the
allowance of the will by the Court after its due execution
has been proved.

RELOVA, J.:

This case was certified to this Tribunal by the Court of

Appeals for final determination pursuant to Section 3, Rule
50 of the Rules of Court.
As found by the Court of Appeals:jgc:chanrobles.com.ph
". . . On January 11, 1977, appellant filed a petition with
the Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed
as Sp. Proc. No. 8432, was opposed by the appellees
Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
Bonilla Frias and Ephraim Bonilla on the following
grounds:jgc:chanrobles.com.ph
"(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will within
twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of
Court:jgc:chanrobles.com.ph
"(2) The alleged copy of the alleged holographic will did
not contain a disposition of property after death and was
not intended to take effect after death, and therefore it
was not a will;

2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED.

The probate of holographic wills may be uncontested or
not. If uncontested, at least one identifying witness is
required and, if no witness is available, experts may be
resorted to. If contested, at least three identifying
witnesses are required.

"(3) The alleged holographic will itself, and not an alleged

copy thereof, must be produced, otherwise it would
produce no effect, as held in Gan v. Yap, 104 Phil. 509; and

3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL

HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS
AVAILABLE; REASON. If the holographic will has been
lost or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence is
the handwriting of the testator in said will. It is necessary
that there be a comparison between sample handwritten
statements of the testator and the handwritten will.

"The appellees likewise moved for the consolidation of the

case with another case (Sp. Proc. No. 8275). Their motion
was granted by the court in an order dated April 4, 1977.

4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX

COPY MAY BE ALLOWED; CASE AT BAR. A photostatic
copy or xerox copy of the holographic will may be allowed
because comparison can be made with the standard
writings of the testator. In the case of Gan v. Yap, 104 Phil.
509, the Court ruled that "the execution and the contents
of a lost or destroyed holographic will may not be proved

"(1) The alleged holographic was not a last will but merely
an instruction as to the management and improvement of
the schools and colleges founded by decedent Ricardo B.
Bonilla; and

"(4) The deceased did not leave any will, holographic or

otherwise, executed and attested as required by law.

"On November 13, 1978, following the consolidation of the

cases, the appellees moved again to dismiss the petition
for the probate of the will. They argued
that:jgc:chanrobles.com.ph

"(2) Lost or destroyed holographic wills cannot be proved

by secondary evidence unlike ordinary wills.

45

"Upon opposition of the appellant, the motion to dismiss

was denied by the court in its order of February 23, 1979.
"The appellees then filed a motion for reconsideration on
the ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to
which the appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23, 1979
and dismissed the petition for the probate of the will of
Ricardo B. Bonilla. The court said:chanrob1es virtual 1aw
library
. . . It is our considered opinion that once the original copy
of the holographic will is lost, a copy thereof cannot stand
in lieu of the original.
In the case of Gan v. Yap, 104 Phil. 509, 522, the Supreme
Court held that in the matter of holographic wills the law,
it is reasonable to suppose, regards the document itself as
the material proof of authenticity of said wills.

of a lost or destroyed holographic will may not be proved

by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate
court." Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because
then the authenticity of the handwriting of the deceased
can be determined by the probate court.
WHEREFORE, the order of the lower court dated October
3, 1979, denying appellants motion for reconsideration
dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

MOREOVER, this Court notes that the alleged holographic

will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the lapse of more
than 14 years from the time of the execution of the will to
the death of the decedent, the fact that the original of the
will could not be located shows to our mind that the
decedent had discarded before his death his allegedly
missing Holographic Will.
Appellants motion for reconsideration was denied. Hence,
an appeal to the Court of Appeals in which it is contended
that the dismissal of appellants petition is contrary to law
and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to
this Court on the ground that the appeal does not involve
question of fact and alleged that the trial court committed
the following assigned errors:jgc:chanrobles.com.ph
"I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
"II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN DISMISSING
APPELLANTS WILL."..
The only question here is whether a holographic will which
was lost or can not be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by
the court after its due execution has been proved. The
probate may be uncontested or not. If uncontested, at
least one identifying witness is required and, if no witness
is available, experts may be resorted to. If contested, at
least three identifying witnesses are required. However, if
the holographic will has been lost or destroyed and no
other copy is available, the will can not be probated
because the best and only evidence is the handwriting of
the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of
the testator and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may be allowed
because comparison can be made with the standard
writings of the testator. In the case of Gan v. Yap, 104 Phil.
509, the Court ruled that "the execution and the contents

CODOY V. CALUGAY, 312 SCRA 333

[G.R. No. 123486. August 12, 1999.]
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, Petitioners, v. EVANGELINE R. CALUGAY,
JOSEPHINE SALCEDO, and EUFEMIA
PATIGAS, Respondents.
DECISION

PARDO, J.:

Before us is a petition for review on certiorari of the

decision of the Court of Appeals 1 and its resolution
denying reconsideration, ruling:jgc:chanrobles.com.ph
"Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been
established and the handwriting and signature therein
(exhibit S) are hers, enough to probate said will. Reversal
of the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that
after plaintiff has completed presentation of his evidence
and the defendant files a motion for judgment on
demurrer to evidence on the ground that upon the facts
and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed
on appeal, the movant loses his right to present evidence
in his behalf (Sec. 1 Rule 35 Revised Rules of Court).
Judgment may, therefore, be rendered for appellant in the
instant case.chanrobles law library : red
"Wherefore, the order appealed from is REVERSED and
judgment rendered allowing the probate of the
holographic will of the testator Matilde Seo Vda. de
Ramonal." 2
The facts are as follows:chanrob1es virtual 1aw library
On April 6, 1990, Evangeline Calugay, Josephine Salcedo
and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seo Vda. de

46

Ramonal, filed with the Regional Trial Court, Misamis

Oriental, Branch 18, a petition 3 for probate of the
holographic will of the deceased, who died on January 16,
1990.
In the petition, respondents claimed that the deceased
Matilde Seo Vda. de Ramonal, was of sound and
disposing mind when she executed the will on August 30,
1978, that there was no fraud, undue influence, and
duress employed in the person of the testator, and the will
was written voluntarily.
The assessed value of the decedents property, including
all real and personal property was about P400,000.00, at
the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel
Ramonal filed an opposition 5 to the petition for probate,
alleging that the holographic will was a forgery and that
the same is even illegible. This gives an impression that a
"third hand" of an interested party other than the "true
hand" of Matilde Seo Vda. de Ramonal executed the
holographic will.
Petitioners argued that the repeated dates incorporated or
appearing on the will after every disposition is out of the
ordinary. If the deceased was the one who executed the
will, and was not forced, the dates and the signature
should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And
assuming that the holographic will is in the handwriting of
the deceased, it was procured by undue and improper
pressure and influence on the part of the beneficiaries, or
through fraud and trickery.chanrobles law library
Respondents presented six (6) witnesses and various
documentary evidence. Petitioners instead of presenting
their evidence, filed a demurrer 6 to evidence, claiming
that respondents failed to establish sufficient factual and
legal basis for the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order,
the dispositive portion of which
reads:jgc:chanrobles.com.ph
"WHEREFORE, in view of the foregoing consideration, the
Demurrer to Evidence having being well taken, same is
granted, and the petition for probate of the document
(Exhibit "S") on the purported Holographic Will of the late
Matilde Seo Vda. de Ramonal, is denied for insufficiency
of evidence and lack of merits." 7
On December 12, 1990, respondents filed a notice of
appeal, 8 and in support of their appeal, the respondents
once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon;
(3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal
Rodolfo Waga; and (6) Evangeline Calugay.

by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro,
was presented to produce and identify the voters affidavit
of the decedent. However, the voters affidavit was not
produced for the same was already destroyed and no
longer available.
Matilde Ramonal Binanay, testified that the deceased
Matilde Seo Vda. de Ramonal was her aunt, and that
after the death of Matildes husband, the latter lived with
her in her parents house for eleven (11) years, from 1958
to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity
with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal)
in collecting rentals from her various tenants of
commercial buildings, and the deceased always issued
receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the
accounts, and carried personal letters of the deceased to
her creditors.chanrobles.com:cralaw:red
Matilde Ramonal Binanay further testified that at the time
of the death of Matilde Vda. de Ramonal, she left a
holographic will dated August 30, 1978, which was
personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates,
and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed
City Fiscal of Cagayan de Oro, he was a practicing lawyer,
and handled all the pleadings and documents signed by
the deceased in connection with the intestate proceedings
of her late husband, as a result of which he is familiar with
the handwriting of the latter. He testified that the
signature appearing in the holographic will was similar to
that of the deceased, Matilde Seo Vda. de Ramonal, but
he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an
employee of the Department of Environment and Natural
Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was
familiar with the signature of the deceased, since the
deceased signed documents in her presence, when the
latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents,
testified that she had lived with the deceased since birth,
and was in fact adopted by the latter. That after a long
period of time she became familiar with the signature of
the deceased. She testified that the signature appearing in
the holographic will is the true and genuine signature of
Matilde Seo Vda. de Ramonal.chanrobles law library
The holographic will which was written in Visayan, is
translated in English as follows:jgc:chanrobles.com.ph
"Instruction

To have a clear understanding of the testimonies of the

witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of
Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was filed.
He produced and identified the records of the case. The
documents presented bear the signature of the deceased,
Matilde Seo Vda. de Ramonal, for the purpose of laying
the basis for comparison of the handwriting of the
testatrix, with the writing treated or admitted as genuine

"August 30, 1978

"1. My share at Cogon, Raminal Street, for Evangeline
Calugay.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"2. Josefina Salcedo must be given 1,500 square meters at

47

Pinikitan Street.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"3. My jewelrys shall be divided
among:jgc:chanrobles.com.ph
"1. Eufemia Patigas
"2. Josefina Salcedo
"3. Evangeline Calugay
"(Sgd) Matilde Vda de Ramonal

may be no available witness acquainted with the

testators hand; or even if so familiarized, the witness may
be unwilling to give a positive opinion. Compliance with
the rule of paragraph 1 of article 811 may thus become an
impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that
"in the absence of any competent witness referred to in
the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to."..
"As can be seen, the law foresees the possibility that no
qualified witness may be found (or what amounts to the
same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for
resort to expert evidence to supply the
deficiency.chanrobles virtual lawlibrary

"August 30, 1978

"4. I bequeath my one (1) hectare land at Mandumol,
Indahag to Evangeline R. Calugay
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal
Village in favor of Evangeline R. Calugay, Helen must
continue with the Sta. Cruz, once I am no longer around.
"(Sgd) Matilde Vda de Ramonal

"It may be true that the rule of this article (requiring that
three witnesses be presented if the will is contested and
only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang v.
Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can
be considered mandatory only in case of ordinary
testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made
by law essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (Art. 10), and
the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be
avoided.

"August 30, 1978

"6. Bury me where my husband Justo is ever buried.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"Gene and Manuel:jgc:chanrobles.com.ph
"Follow my instruction in order that I will rest peacefully.
"Mama
"Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered
decision 9 ruling that the appeal was meritorious. Citing
the decision in the case of Azaola v. Singson, 109 Phil.
102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals
held:jgc:chanrobles.com.ph
". . . even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our
present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present
at the execution of the holographic will, none being
required by law (art. 810, new civil code), it becomes
obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of
the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even
if the law does not express) "that the will and the
signature are in the handwriting of the testator." There

"Again, under Art. 811, the resort to expert evidence is

conditioned by the words "if the court deem it necessary",
which reveal that what the law deems essential is that the
court should be convinced of the wills authenticity. Where
the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the
testator be carried into effect.
"Paraphrasing Azaola v. Singson, even if the genuineness
of the holographic will were contested, Article 811 of the
civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having
the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring
the production of three witnesses is merely permissive.
What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to
exhaust all available lines of inquiry, for the state is as
much interested in the proponent that the true intention of
the testator be carried into effect. And because the law
leaves it to the trial court to decide if experts are still
needed, no unfavorable inference can be drawn from a
partys failure to offer expert evidence, until and unless
the court expresses dissatisfaction with the testimony of
the lay witnesses. 10
According to the Court of Appeals, Evangeline Calugay,
Matilde Ramonal Binanay and other witnesses definitely
and in no uncertain terms testified that the handwriting
and signature in the holographic will were those of the

48

testator herself.

Matilde Ramonal Binanay, on the other hand, testified

that:chanrob1es virtual 1aw library

Thus, upon the unrebutted testimony of appellant

Evangeline Calugay and witness Matilde Ramonal Binanay,
the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature
therein, and allowed the will to probate.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph

Q. And you said for eleven (11) years Matilde Vda de

Ramonal resided with your parents at Pinikitan, Cagayan
de Oro City. Would you tell the court what was your
occupation or how did Matilde Vda de Ramonal keep
herself busy that time?

Hence, this petition.

A. Collecting rentals.

The petitioners raise the following issues:chanrob1es

virtual 1aw library

Q. From where?

(1) Whether or not the ruling of the case of Azaola v.

Singson, 109 Phil. 102, relied upon by the respondent
Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding
that private respondents had been able to present credible
evidence to prove that the date, text, and signature on the
holographic will were written entirely in the hand of the
testatrix.
(3) Whether or not the Court of Appeals erred in not
analyzing the signatures in the holographic will of Matilde
Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions
of Article 811 of the Civil Code are permissive or
mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least three
witnesses explicitly declare that the signature in the will is
the genuine signature of the testator.
We are convinced, based on the language used, that
Article 811 of the Civil Code is mandatory. The word "shall"
connotes a mandatory order. We have ruled that "shall" in
a statute commonly denotes an imperative obligation and
is inconsistent with the idea of discretion and that the
presumption is that the word "shall," when used in a
statute is mandatory." 11
Laws are enacted to achieve a goal intended and to guide
against an evil or mischief that aims to prevent. In the
case at bar, the goal to achieve is to give effect to the
wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their
benefit will employ means to defeat the wishes of the
testator.
So, we believe that the paramount consideration in the
present petition is to determine the true intent of the
deceased. An exhaustive and objective consideration of
the evidence is imperative to establish the true intent of
the testator.chanrobles law library : red

A. From the land rentals and commercial buildings at

Pabayo-Gomez streets. 12
x

Q. Who sometime accompany her?

A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir. 13
x

Q. Showing to you the receipt dated 23 October 1979, is

this the one you are referring to as one of the receipts
which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal,
whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is a signature of Matilde vda. De
Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know
Matilde vda de Ramonal kept records of the accounts of
her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in
behalf of Matilde Vda. De Ramonal.

It will be noted that not all the witnesses presented by the

respondents testified explicitly that they were familiar with
the handwriting of the testator. In the case of Augusto
Neri, clerk of court, Court of First Instance, Misamis
Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not
presented to declare explicitly that the signature
appearing in the holographic was that of the deceased.

Q. How is this record of accounts made? How is this

reflected?

Generosa E. Senon, the election registrar of Cagayan de

Oro City, was presented to identify the signature of the
deceased in the voters affidavit, which was not even
produced as it was no longer available.

Q. In addition to collection of rentals, posting records of

accounts of tenants and deed of sale which you said what
else did you do to acquire familiarity of the signature of
Matilde Vda De Ramonal?chanrobles.com : virtual law
library

A. In handwritten. 14
x

49

A. Posting records.

Q. Now, Mrs. Binanay was there any particular reason why

your mother left that will to you and therefore you have
that in your possession?

Q. Aside from that?

A. Carrying letters.

A. It was not given to me by my mother, I took that in the

aparador when she died.

Q. Letters of whom?

Q. After taking that document you kept it with you?

A. Matilde

A. I presented it to the fiscal.

Q. To whom?

Q. For what purpose?

A. To her creditors. 15

A. Just to seek advice.

Q. Advice of what?

A. About the will. 18

Q. You testified that at the time of her death she left a will.
I am showing to you a document with its title "tugon" is
this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that
handwritten "tugon", whose handwriting is this?
A. My aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature. 16
What Ms. Binanay saw were pre-prepared receipts and
letters of the deceased, which she either mailed or gave to
her tenants. She did not declare that she saw the
deceased sign a document or write a note.chanrobles
virtual lawlibrary
Further, during the cross-examination, the counsel for
petitioners elicited the fact that the will was not found in
the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:chanrob1es
virtual 1aw library
Q. Mrs. Binanay, when you were asked by counsel for the
petitioners if the late Matilde Seno vda de Ramonal left a
will you said, yes?

In her testimony it was also evident that Ms. Binanay kept

the fact about the will from petitioners, the legally
adopted children of the deceased. Such actions put in
issue her motive of keeping the will a secret to petitioners
and revealing it only after the death of Matilde Seo Vda.
de Ramonal.chanrobles virtual lawlibrary
In the testimony of Ms. Binanay, the following were
established:chanrob1es virtual 1aw library
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet
a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she
could walk agilely and she could go to her building to
collect rentals, is that correct?
A. Yes, sir. 19
x

Q. Now, let us go to the third signature of Matilde

Ramonal. Do you know that there are retracings in the
word Vda.?
A. Yes, a little. The letter L is continuous.

A. Yes, sir.

Q. And also in Matilde the letter L is continued to letter D?

Q. Who was in possession of that will?

A. Yes, sir.

A. I.

Q. Again the third signature of Matilde Vda de Ramonal

the letter L in Matilde is continued towards letter D.

Q. Since when did you have the possession of the will?

A. Yes, sir.
A. It was in my mothers possession.
Q. And there is a retracing in the word Vda.?
Q. So, it was not in your possession?
A. Yes, sir. 20
A. Sorry, yes.
Q. And when did you come into possession since as you
said this was originally in the possession of your mother?
A. 1985. 17
x

Q. Now, that was 1979, remember one year after the

alleged holographic will. Now, you identified a document
marked as Exhibit R. This is dated January 8,1978 which is
only about eight months from August 30,1978. Do you
notice that the signature Matilde Vda de Ramonal is
beautifully written and legible?

50

A. Yes, sir, that is her signature.

A. Yes, sir the handwriting shows that she was very
exhausted.
Q. You just say that she was very exhausted while that in
1978 she was healthy was not sickly and she was agile.
Now, you said she was exhausted?cralawnad
A. In writing.
Q. How did you know that she was exhausted when you
were not present and you just tried to explain yourself out
because of the apparent inconsistencies?

Q. Why do you say that is her signature?

A. I am familiar with her signature. 23
So, the only reason that Evangeline can give as to why she
was familiar with the handwriting of the deceased was
because she lived with her since birth. She never declared
that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testified
that:chanrob1es virtual 1aw library

A. That was I think. (sic)

Q. Do you know Matilde Vda de Ramonal?
Q. Now, you already observed this signature dated 1978,
the same year as the alleged holographic will. In exhibit I,
you will notice that there is no retracing; there is no
hesitancy and the signature was written on a fluid
movement. . . . And in fact , the name Eufemia R. Patigas
here refers to one of the petitioners?

A. Yes, sir I know her because she is my godmother the

husband is my godfather. Actually I am related to the
husband by consanguinity.
Q. Can you tell the name of the husband?

A. Yes, sir.

A. The late husband is Justo Ramonal. 24

Q. You will also notice Mrs. Binanay that it is not only with
the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and
tremors, do you notice that?

A. Yes, sir. 21

A. As far as I know they have no legitimate

children.25cralaw:red

Evangeline Calugay declared that the holographic will was

written, dated and signed in the handwriting of the
testator. She testified that:chanrob1es virtual 1aw library

Q. Can you tell this court whether the spouses Justo

Ramonal and Matilde Ramonal have legitimate children?

Q. You testified that you stayed with the house of the

spouses Matilde and Justo Ramonal for the period of 22
years. Could you tell the court the services if any which
you rendered to Matilde Ramonal?

Q. You said after becoming a lawyer you practice your

profession? Where?

A. During my stay I used to go with her to the church, to

the market and then to her transactions.

Q. Do you have services rendered with the deceased

Matilde vda de Ramonal?

Q. What else? What services that you rendered?

A. I assisted her in terminating the partition, of properties.

A. After my college days I assisted her in going to the

bank, paying taxes and to her lawyer.

Q. When you said assisted, you acted as her counsel? Any

sort of counsel as in what case is that, Fiscal?

Q. What was your purpose of going to her lawyer?

A. It is about the project partition to terminate the

property, which was under the court before. 26

A. I used to be her personal driver.

A. Here in Cagayan de Oro City.

Q. In the course of your stay for 22 years did you acquire

familiarity of the handwriting of Matilde Vda de Ramonal?

A. Yes, sir.

Q. Appearing in special proceeding no. 427 is the

amended inventory which is marked as exhibit N of the
estate of Justo Ramonal and there appears a signature
over the type written word Matilde vda de Ramonal, whose
signature is this?chanrobles law library

Q. How come that you acquired familiarity?

A. Because I lived with her since birth. 22
x

A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

Q. Now, I am showing to you Exhibit S which is captioned

"tugon" dated August 30, 1978 there is a signature here
below item No. 1, will you tell this court whose signature is
this?chanroblesvirtual|awlibrary

A. This one here that is the signature of Mrs. Matilde vda

de Ramonal. 27
x

51

Q. Aside from attending as counsel in that Special

Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other
matters but if there are documents to show that I have
assisted then I can recall. 28
x

Q. Now, I am showing to you exhibit S which is titled

"tugon", kindly go over this document, Fiscal Waga and tell
the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S" ?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is
this?
A. I think this signature here it seems to be the signature
of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of
Matilde Vda de Ramonal, can you tell the court whose
signature is this?
A. Well, that is similar to that signature appearing in the
project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de
Ramonal, can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature
of Matilde vda de Ramonal.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
Q. Why do you say that?
A. Because there is a similarity in the way it is being
written.
Q. How about this signature in item no. 4, can you tell the
court whose signature is this?
A. The same is true with the signature in item no. 4. It
seems that they are similar. 29
x

Q. Mr. Prosecutor, I heard you when you said that the

signature of Matilde Vda de Ramonal Appearing in exhibit
S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of
Matilde vda de Ramonal. You are merely supposing that it
seems to be her signature because it is similar to the
signature of the project of partition which you have made?

holographic will, citing the decision in Azaola v. Singson,

31 ruling that the requirement is merely directory and not
mandatory.chanrobles law library : red
In the case of Ajero v. Court of Appeals, 32 we said that
"the object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will."..
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator, which
is why if the holographic will is contested, that law
requires three witnesses to declare that the will was in the
handwriting of the deceased.
The will was found not in the personal belongings of the
deceased but with one of the respondents, who kept it
even before the death of the deceased. In the testimony of
Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the death
of the deceased.cralawnad
There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with other
documents signed and executed by her during her
lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of
the holographic will and she is not a handwriting expert.
Even the former lawyer of the deceased expressed doubts
as to the authenticity of the signature in the holographic
will.
A visual examination of the holographic will convince us
that the strokes are different when compared with other
documents written by the testator. The signature of the
testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated
August 30, 1978, 33 and the signatures in several
documents such as the application letter for pasture
permit dated December 30, 1980, 34 and a letter dated
June 16, 1978, 35 the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that the
holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET
ASIDE. The records are ordered remanded to the court of
origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seo Vda. de
Ramonal.chanroblesvirtual|awlibrary
No costs.
SO ORDERED.

A. That is true. 30
From the testimonies of these witnesses, the Court of
Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested

KALAW V. RELOVA, 132 SCRA 241

G.R. No. L-40207 September 28, 1984

52

ROSA K. KALAW, Petitioner, vs. HON. JUDGE BENJAMIN

RELOVA, Presiding Judge of the CFI of Batangas,
Branch VI, Lipa City, and GREGORIO K.
KALAW,Respondents.
Leandro H. Fernandez for petitioner...
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K.
KALAW, claiming to be the sole heir of his deceased sister,
Natividad K. Kalaw, filed a petition before the Court of First
Instance of Batangas, Branch VI, Lipa City, for the probate
of her holographic Will executed on December 24,
1968.chanroblesvirtualawlibrary ..
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen...
I Natividad K. Kalaw Filipino 63years of age, single, and a
resident of Lipa City, being of sound and disposing mind
and memory, do hereby declare thus to be my last will and
testament...
1. It is my will that I'll be burried in the cemetery of the
catholic church of Lipa City. In accordance with the rights
of said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence, on
November 10, 1971, petitioner ROSA K. Kalaw opposed
probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without
the proper authentication by the full signature of the
testatrix as required by Article 814 of the Civil Code
reading:
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must
authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first
written, should be given effect and probated so that she
could be the sole heir
thereunder.chanroblesvirtualawlibrary ..
After trial, respondent Judge denied probate in an Order,
dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National

Bureau of Investigation for examination. The NBI reported
that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of
the decedent, Natividad K. Kalaw. The only question is
whether the win, Exhibit 'C', should be admitted to
probate although the alterations and/or insertions or
additions above-mentioned were not authenticated by the
full signature of the testatrix pursuant to Art. 814 of the
Civil Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground
that they themselves agreed thru their counsel to submit
the Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it impliedly
understood, that the oppositors would be in
estoppel.chanroblesvirtualawlibrary ..
The Court finds, therefore, that the provision of Article 814
of the Civil Code is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in Exhibit "C" not to
be authenticated by the full signature of the testatrix
Natividad K. Kalaw, the Court will deny the admission to
probate of Exhibit "C".chanroblesvirtualawlibrary ..
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby
denied.chanroblesvirtualawlibrary ..
SO ORDERED.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions were
the testatrix, the denial to probate of her holographic Will
would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November
2, 1973, on the ground that "Article 814 of the Civil Code
being , clear and explicit, (it) requires no necessity for
interpretation."..
From that Order, dated September 3, 1973, denying
probate, and the Order dated November 2, 1973 denying
reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not
the original unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should
be probated or not, with her as sole
heir.chanroblesvirtualawlibrary ..
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
litem not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when
he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2..

53

However, when as in this case, the holographic Will in

dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked for
the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change
of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing
her full signature, ..

WHEREFORE, this Petition is hereby dismissed and the

Decision of respondent Judge, dated September 3, 1973, is
hereby affirmed in toto. No
costs.chanroblesvirtualawlibrary ..
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ.,
concur.chanroblesvirtualawlibrary ..
Relova, J., took no part.
..

The ruling in Velasco, supra, must be held confined to

such insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the
altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations
and alterations made by the testatrix herein, her real
intention cannot be determined with certitude. As Manresa
had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil
Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el
688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador
bajo su firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al testamento
mismo, ya por estar esa disposicion en parrafo aparte de
aquel que determine las condiciones necesarias para la
validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte
esencial y respectiva del testamento, vinieran a anular
este, y ya porque el precepto contenido en dicho parrafo
ha de entenderse en perfecta armonia y congruencia con
el art. 26 de la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se
salven en la forma prevenida, paro no el documento que
las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes
de ortografia o de purez escrituraria, sin trascendencia
alguna(l).chanroblesvirtualawlibrary ..
Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de
modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la sentencia
de 29 de Noviembre de 1916, que declara nulo un
testamento olografo por no estar salvada por el testador
la enmienda del guarismo ultimo del ao en que fue
extendido 3 (Emphasis ours).

Separate Opinions
TEEHANKEE, J., concurring: ..
I concur. Rosa, having appealed to this Court on a sole
question of law, is bound by the trial court's factual finding
that the peculiar alterations in the holographic will
crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole executrix"
were made by the testatrix in her own handwriting. (I find
it peculiar that the testatrix who was obviously an
educated person would unthinkingly make such crude
alterations instead of consulting her lawyer and writing an
entirely new holographic wig in order to avoid any doubts
as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting
"brother Gregorio Kalaw" as sole heir is not even initialed
by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initialed.) Probate of the
radically altered will replacing Gregorio for Rosa as sole
heir is properly denied, since the same was not duly
authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The
original unaltered will naming Rosa as sole heir cannot,
however, be given effect in view of the trial court's factual
finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer
any will naming Rosa as sole heir. The net result is that the
testatrix left no valid will and both Rosa and Gregorio as
her next of kill succeed to her intestate
estate.chanroblesvirtualawlibrary ..
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole
question of law, is bound by the trial court's factual finding
that the peculiar alterations in the holographic will
crossing out Rosa's name and instead inserting her
brother Gregorio's name as sole heir and "sole executrix"
were made by the testatrix in her own handwriting. (I find
it peculiar that the testatrix who was obviously an
educated person would unthinkingly make such crude
alterations instead of consulting her lawyer and writing an

54

entirely new holographic wig in order to avoid any doubts

as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting
"brother Gregorio Kalaw" as sole heir is not even initialed
by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initialed.) Probate of the
radically altered will replacing Gregorio for Rosa as sole
heir is properly denied, since the same was not duly
authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The
original unaltered will naming Rosa as sole heir cannot,
however, be given effect in view of the trial court's factual
finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer
any will naming Rosa as sole heir. The net result is that the
testatrix left no valid will and both Rosa and Gregorio as
her next of kill succeed to her intestate estate.

SPOUSES AJERO V. CA, 236 SCRA 488

G.R. No. 106720. September 15, 1994.]
SPOUSES ROBERTO AND THELMA
AJERO, Petitioners, v. THE COURT OF APPEALS AND
CLEMENTE SAND, Respondents.

DECISION

PUNO, J.:

This is an appeal by certiorari from the Decision of the

Court of Appeals 1 in CA-G.R. CV No. 22840, dated March
30, 1992, the dispositive portion of which
reads:jgc:chanrobles.com.ph
"PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs."..
The earlier Decision was rendered by the RTC of Quezon
City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of
the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.chanrobles.com.ph : virtual law library
On January 20, 1983, petitioners instituted Sp. Proc. No. Q37171, for allowance of decedents holographic will. They
alleged that at the time of its execution, she was of sound
and disposing mind, not acting under duress, fraud or
undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds
that: neither the testaments body nor the signature
therein was in decedents handwriting; it contained

alterations and corrections which were not duly signed by

decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The
petition was likewise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted
the decedents holographic will to probate. It found, inter
alia:jgc:chanrobles.com.ph
"Considering then that the probate proceedings herein
must decide only the question of identity of the will, its
due execution and the testamentary capacity of the
testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the
formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
"For one, no evidence was presented to show that the will
in question is different from the will actually executed by
the testatrix. The only objections raised by the oppositors .
. . are that the will was not written in the handwriting of
the testatrix which properly refers to the question of its
due execution, and not to the question of identity of will.
No other will was alleged to have been executed by the
testatrix other than the will herein presented. Hence, in
the light of the evidence adduced, the identity of the will
presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually
executed by the testatrix.
"x

"While the fact that it was entirely written, dated and

signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the handwriting of the
testatrix have been presented and have explicitly and
categorically identified the handwriting with which the
holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in
the handwriting of the testatrix has been complied with.
"x

"As to the question of the testamentary capacity of the

testatrix, (private respondent) Clemente Sand himself has
testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday
celebration in 1981, at or around which time the
holographic will in question was executed by the testatrix.
To be of sound mind, it is sufficient that the testatrix, at
the time of making the will, knew the value of the estate
to be disposed of, the proper object of her bounty, and the
character of the testamentary act . . . The will itself shows
that the testatrix even had detailed knowledge of the
nature of her estate. She even identified the lot number
and square meters of the lots she had conveyed by will.
The objects of her bounty were likewise identified
explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence
on will and succession, there is more than sufficient
showing that she knows the character of the testamentary

55

act.
"In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix
has to be resolved in favor of the allowance of probate of
the will submitted herein.
"Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by
undue and improper pressure and influence on the part of
the beneficiary or of some other person, the evidence
adduced have not shown any instance where improper
pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the will, i.e.,
at or around the time of her birth anniversary celebration
in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense
of superiority, which has been testified to in Court, all
show the unlikelihood of her being unduly influenced or
improperly pressured to make the aforesaid will. It must
be noted that the undue influence or improper pressure in
question herein only refer to the making of a will and not
as to the specific testamentary provisions therein which is
the proper subject of another proceeding. Hence, under
the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
"Considering then that it is a well-established doctrine in
the law on succession that in case of doubt, testate
succession should be preferred over intestate succession,
and the fact that no convincing grounds were presented
and proven for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will submitted herein
must be admitted to probate." 3 (Emphasis omitted.)
On appeal, said Decision was reversed, and the petition
for probate of decedents will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent
did not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows:jgc:chanrobles.com.ph
"Article 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the
last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions."..
"Article 814: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature."..
It alluded to certain dispositions in the will which were
either unsigned and undated, or signed but not dated. It
also found that the erasures, alterations and cancellations
made thereon had not been authenticated by
decedent.chanrobles lawlibrary : rednad
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills
shall be disallowed in any of the following
cases:jgc:chanrobles.com.ph
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of

fear, or threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was procured by fraud
or trick, and he did not intend that the instrument should
be his will at the time of fixing his signature thereto."..
In the same vein, Article 839 of the New Civil Code
reads:jgc:chanrobles.com.ph
"Article 839: The will shall be disallowed in any of the
following cases:chanrob1es virtual 1aw library
(1) If the formalities required by law have not been
complied with;
(2 If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
affixing his signature thereto."..
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the
decedents last will and testament; (2) whether said will
was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and
its signing were the voluntary acts of the decedents. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante,
were not complied with, hence, it disallowed the probate
of said will. This is erroneous.chanrobles virtual lawlibrary
We reiterate what we held in Abangan v. Abangan, 40 Phil.
476, 479 (1919), that:jgc:chanrobles.com.ph
"The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators last
will, must be disregarded."..

56

For purposes of probating non-holographic wills, these

formal solemnities include the subscription, attestation,
and acknowledgment requirements under Articles 8105
and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code,
thus:jgc:chanrobles.com.ph
"A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed." (Emphasis supplied.)
Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that
its requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the
result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to
probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw v. Relova,
132 SCRA 237, 242 (1984), this Court held:chanrobles
virtual lawlibrary
"Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
have not been noted under his signature, . . . the Will is
not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary when
he said la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 8 (Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations
or insertions were made on the date of the holographic
will or on testators signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will
only result in disallowance of such changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688
of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read
as follows:jgc:chanrobles.com.ph

"Article 678: A will is called holographic when the testator

writes it himself in the form and with the requisites
required in Article 688.
"Article 688: Holographic wills may be executed only by
persons of full age.
"In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its execution,
written in its entirety by the testator and signed by him,
and must contain a statement of the year, month and day
of its execution.
"If it should contain any erased, corrected, or interlined
words, the testator must identify them over his signature.
"Foreigners may execute holographic wills in their own
language."..
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of
the New Civil Code and not those found in Articles 813
and 814 of the same Code are essential to the probate
of a holographic will.
The Court of Appeals further held that decedent Annie
Sand could not validly dispose of the house and lot located
in Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.cralawnad
As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will
sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of
the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety.).
Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares
with her fathers other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of
the entire house and lot in Cabadbaran, Agusan del Norte.
The Decision of the Regional Trial Court of Quezon City,
Branch 94 in Sp. Proc. No. Q-37171, dated November 19,
1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property.
No costs.cralawnad
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

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